DISSENTING OPINION.
Montgomery, Presiding Judge:I find myself unable to assent to the conclusion reached by the majority of the court in this case. I take it that it is conceded that a decision of the appraiser acting as such, and proceeding within correct principles of law in a matter committed to his judgment, is final and concludes both the importer and the collector.
I think there is no disagreement either that in carrying into effect the provisions of section 7, which provides that merchandise shall not *22■be admitted at less than invoice or entered value, the collector must •of necessity ascertain what the invoice and entered value is, and if it ■consists of the per se value of the goods, and also the value of cartons, •cases, charges, etc., that these are the subject of ascertainment by him. See United States v. Passavant (169 U. S., 16).
The real question in this case is whether the duty imposed upon the ■appraiser to fix the value of imported merchandise includes the duty of appraising as a part of the value the cost of cartons, cases, and other charges. The importers contend that the value to be fixed by the appraiser does include these items, and 'that therefore in the absence of an appeal the collector is concluded from going back of the finding of the appraisers. The Government, on the other hand, distinguishes between the per se cost of the goods imported and the charges mentioned.
The duty is therefore devolved upon the court of construing the statute. The statute itself, in the absence of uncertainty or ambiguity, is our guide. If there be ambiguity or conflict in its provisions, it is our duty to reconcile them as well as may be.
Let us take the statute as we find it. Subsection 10 of section 28 of the act of 1909 reads as follows:
That it shall he the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraisers (or of the collector, as the case -may •be), by all reasonable ways and means in his or their power to ascertain, estimate, and appraise the actual market value and wholesale price of the merchandise at the time of •exportation to the United States, in the principal markets of the country whence the same has been imported, and the number of yards, parcels, or quantities, the actual market value or wholesale price of every of them, as the case may require.
Subsection 18 provides:
That whenever imported merchandise is subject to an ad valorem rate of duty, orto ■a duty based upon or regulated in any manner by the value thereof, the duty shall '■be assessed upon the actual market value or wholesale price thereof, at the time of exportation to the United States, in the principal markets of the country irom whence exported; that such actual market value shall be held to be the price at which such mer•chandise is freely offered for sale to all purchasers in said markets, in the usual whole«sale quantities, and the price which the manufacturer or owner would have received, -•and was willing to receive, for such merchandise when sold in the ordinary course of ■¡trade in the usual wholesale quantities, including the value of all cartons, cases, -crates, boxes, .sacks, casks, barrels, hogsheads, bottles, jars, demijohns, carboys, and ■other containers or coverings, whether holding liquids or solids, and all other costs, -charges, and expenses incident to placing the merchandise in condition, packed •ready for shipment to the United States, * * *. That the words “value,” or “actual market value,” or “wholesale price,” whenever used in this act, or in any law •relating to the appraisement of imported merchandise, shall be construed to be the ■actual market value or wholesale price of such, or similar merchandise comparable in ■value therewith, as defined in this act.
It is difficult to conceive where these two sections, read by themselves, can be said to be ambiguous. One section imposes the duty •upon the appraiser of appraising the actual market value and whole*23sale price of merchandise at tbe time of exportation to tbe United States. Another section says tbat tbe actual market value shall be construed to be tbe ‘ ‘ actual market value or wholesale price of such or similar merchandise * * * as defined in this act.”
We turn then to provisions of tbe act to ascertain if there be any definition of actual market value, and we find in tbe same subsection Congress dealing with actual market value, and declaring tbat “duty shall be assessed upon tbe actual market value or wholesale price thereof,” and tbat “such actual market value shall be held to be tbe price at which such merchandise is freely offered for sale,” etc., “including the value of all cartons, cases,” etc. Elaboration does not add to the force of the language employed. Actual market value is to be appraised. Actual market value whenever used in the act is to mean such actual market value as defined. The defined actual market value is actual market value which includes the value of cartons, cases, charges, etc., and no other actual market value. It seems to me that there is no escape from this conclusion.
But in the main opinion it is said of subsection 18:
It states: “Duty shall be assessed upon the actual market value or wholesale price thereof” and “that such actual market value” (upon which duty shall be assessed) “shall be held to be the price,” etc. * * * By the phrase “such actual market value,” “such” refers what follows back to “the actual market value” upon which “duty shall be assessed,” as dutiable “actual market value.” This section refers intrinsically and expressly to the collector’s duty and actions.
And throughout the opinion an attempt is made to distinguish between the actual market value as such and so-called dutiable actual market value. Such purpose, however, is not indicated by the paragraph itself. In the first place, one has to import the word “dutiable” bodily into the text in order to justify such construction. It is true that the provision reads that the duty shall be assessed upon the actual market value, but it proceeds to define then what this actual market value is, and is the only place hi the statute in which there is so specific a definition of actual market value.
But this is not all. Congress has not made any such distinction between assessable market value and dutiable market value as might be inferred from the reasoning of the main opinion. Quite the reverse. If we turn to subsection 13 we find:
If tbe collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days thereafter appeal to reappraisement, which shall be made by one of the general appraisers, or if the importer, owner, agent, or consignee of such merchandise shall be dissatisfied with the appraisement thereof, and shall have complied with the requirements of law with respect to the entry and appraisement of merchandise, he may within ten days thereafter give notice to the collector in writing of such dissatisfaction. The decision of the general appraiser in cases of reappraisement shall be final and conclusive as to the dutiable value of such merchandise.
*24And again in the same section, after providing for an appeal and referring to the action of the board, it is provided:
In such cases the general appraiser and boards of general appraisers shall proceed by all reasonable ways and means in their power to ascertain, estimate, and determine the dutiable value of the imported merchandise. * * *
And then providing that—
The decision of the appraiser, or the person acting as such (in case where no objection is made thereto either by the importer, owner, consignee, or agent) or the single general appraiser in case of no appeal, or of the board of three general appraisers in all i’eappraisement cases shall be final and conclusive against all parties and shall not be subject to review in any manner for any cause in any tribunal or court. * * *
So that it is apparent that it will not do to say that the Congress has, in the act in question, distinguished between actual market value as defined by section 18 and dutiable market value.
But it is further suggested that the latter part of subsection 13, defining the duties of the collector, conferred upon him the duty of ascertaining the costs and charges dutiable by law. The clause reads as follows:
The collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law.
■ It must at least be conceded by anyone who reads this clause that it is quite as consistent with the view that the appraisers fix as dutiable costs and charges the actual market value as defined by subsection 18 as to hold that it confers the duty of fixing the costs and charges upon the collector. The duty imposed upon the collector here is a duty to ascertain, fix, and liquidate the rate and amount of duties. To be paid on what? On such merchandise and on the dutiable costs and charges thereon according to law. Now such merchandise, and the dutiable costs and charges thereon according to law, all come under one head as the actual value for dutiable purposes as fixed by the Board of General Appraisers. It will not do to say that the collector liquidates the rate and amount of dutiable costs and charges. What he liquidates is the rate and amount of duties, and it is by a strained construction that this clause is given any other meaning.
Subsection 14 is also cited, which reads:
That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character, * * * shall be final and conclusive. * * *
This, likewise, is open to a construction wholly consistent with the views I have expressed as to subsection 10 and subsection 18, and' more consonant therewith than with any other view that could be maintained. The decision of the collector here referred to is as to the rate and amount of duties chargeable upon imported merchandise, which rate and amount of duties are chargeable upon such imported merchandise, including the dutiable costs and charges, the assessment *25of which, is provided for by the other provisions of the statute. The only other subject as to which the decision of the collector is made conclusive is indicated by the conjunction “and.” His decision is therefore conclusive under the terms of this section as to “the rate and amount of duties * * * and as to all fees and exactions of whatever character,” which clearly refer to fees and exactions for service.
Reliance is placed upon the cases of Oberteuffer v. Robertson (116 U. S., 499), Beard v. Porter (124 U. S., 437), and United States v. Passavant (169 U. S., 16). And it is said that these authorities distinguish between appraisement and ascertainment; that the value of the goods per se is to be appraised; but that the charges are simply ascertained.
In Oberteuffer v. Robertson the court had under consideration a statute which provided (sec. 2906 of the Revised Statutes) that—
When an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified quantity or parcel of such merchandise, the collector within whose district the same shall be imported or entered shall cause the actual market value, or wholesale price thereof, at the period of the exportation to-the United States, in the principal markets of the country from which the same has been imported, to he appraised, and such appraised value shall be considered the value upon which duty shall be assessed.
By the act of July 28,1866, a section was added which provided—
In determining the dutiable value of merchandise, there shall be added to the cost, or to the actual wholesale price or general market value at the time of exportation in the principal markets of the country from whence the same has been imported into the United States, the cost of transportation, shipment, and transshipment, with all the expenses included, from the place of growth, production, or manufacture. * * *■
And it was provided that—
All additions made to the entered value of merchandise for charges shall be regarded as part of the actual value of such merchandise. * * *
This was followed in 1883 by an act which repealed certain previous sections and proceeded:
* * * And hereafter none of the charges imposed by said sections or any other provisions of existing law shall be estimated in ascertaining the value of goods to be-imported, nor shall the value of the usual and necessary sacks, crates, boxes, or covering of any kind be estimated as part of their value in determining the amount of duties for which they are liable. * * *
It was said by the court:
This repeals the provisions of section 2907 that, in determining the dutiable value-of the merchandise, there shall be added to its appraised market value (to be ascertained under section 2906, which is left unrepealed), the expenses and charges mentioned in section 2907, among which are “the value of the sack, box, or covering of any kind.” * * *
The items thus specified in section 2907 of the Revised Statutes, and in section 14 of the act of 1874, being charges, and being eliminated as part of the dutiable value of goods, and section 2906 remaining for the appraisement of the goods per se, without, the addition of any of the charges so abolished, it would seem that the meaning of section 7 of the act of 1883 was plain.
*26But that section goes on to say: “And hereafter none of the charges imposed by said sections or any other provisions of existing law shall be estimated in ascertaining the value of goods to be imported.” Nothing is imposed by section 2907 of the Revised Statutes but the addition to the appraised market value, provided for by section 2906, of the items specified in section 2907, all of which are thus declared by section 7 of the act of 1883 to have been “charges.” Those charges are no longer to be added or estimated, as before, in determining the dutiable value of the goods. So, the repealed section 14 of the act of 1867 imposed nothing except in respect of the items it specified, which were items to be added to appraised 'market value, and are, therefore, declared by section 7 of the act of 1883 to have been “charges.”
The court thereupon determined that in view of this legislation it was not competent for the assessor to include as a part of the appraised value the value of the cartons and cases, a conclusion which is irresistible in view of the legislation. But it will be observed that stress was laid in this case upon the fact that the repeal of the act of 1883 had referred to these-items specifically as charges to differentiate them from appraised value. Perhaps the case may be said also to be an authority for the proposition that under the state of the law as it then existed the appraisal was to be limited to the 'per se value of the goods.
The case of Beard v. Porter was a case in which the language used was dictum and the case arose under the same statutes considered in Oberteuffer v. Robertson.
United States v. Passavant arose under the customs administrative act of June 10, 1890. It was held in that case that—
Under section 7 the collector is to determine for himself the question of what is the invoice value of the goods, and in doing this he may add such charges as he considers to be dutiable, but his decision in this respect is not in the nature of an appraisement and may be attacked by protest. And while the general rule is that the valuation is conclusive upon all parties, nevertheless the appraisement is subject to be impeached where the appraiser or collector has proceeded on a wrong principle contrary to law or has transcended the powers conferred by statute.
This ruling was followed by this court in Stein v. United States (1 Ct. Cust. Appls., 36; T. D. 31007) and 1 Ct. Cust. Appls., 478 (T. D. 31525) and was reaffirmed in United States v. Bauer (3 Ct. Cust. Appls., 343; T. D. 32627).
It was held in the Passavant case that—
Whether the dutiable value in this case was erroneously increased by the unauthorized addition of an independent item to the market value, as asserted by the importers, was a question of law and properly carried to the Board of General Appraisers by protest and appeal.
' The case does not, as I read it, support the contention of the Government.
The case of United States v. Klingenberg (153 U. S., 93) presented no such question as that here involved. At page 102 of the case the question therein involved was distinctly stated as follows:
The action of the collector in the present case did not relate either to the classification of the goods or to the rate of duty imposed thereon, but, as conceded by counsel for the appellee, merely increased the amount of duties to be paid by the importer *27to 'the extent of the difference between $0.32 as the value of the silver florin and $0,482 as the value of the gold florin in the currency of account of the United States. This involved no dispute between the parties as to either classification or rate of duty or the dutiable value of the imported merchandise. But it did involve the proper construction of the law, as embodied in section 52 of the tariff act of 1890, and the estimate of the florin as made by the Director of the Mint and as proclaimed by the Secretary of the Treasury on July 1, 1892, made in pursuance thereof.
Whatever was said, therefore, in this case in discussing the various sections of the tariff act of 1890 must be regarded as dictum. On page 101 it was said:
Section 14 provides that the decision of the collector as to the “rate and amount of duties, * * * including all dutiable costs and charges, and as to all fees and exactions of whatever character, except duties on tonnage, shall be final and conclusive,” unless the importer appeals to the Board of General Appraisers. This section clearly allows and provides for an appeal by the importer from the decision of the collector as to both rate and amount of duties, as well as dutiable costs and charges, and as to all fees and exactions.
As before stated, this is in no way essential to a decision of the case and occurs in the course of the process of stating the various sections of the act. As I have pointed out, the more obvious construction of this paragraph is that which accords to the language— “the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges,” the meaning clearly imported, i. e., that the decision shall relate to the amount of duties which are chargeable upon the imported merchandise, which merchandise includes all dutiable costs and charges. Two things are left to the decision of the collector in this paragraph: One is the rate of duties. The other is the amount of duties, and in ascertaining the amount of duties confessedly the rate must be spread upon not only the merchandise per se, but all dutiable costs and charges named in paragraph 18. If this be not so, this court certainly was in error in United States v. Francklyn (4 Ct. Cust. Appls., 54; T. D. 33306), and the various decisions there cited were also in gross error.
The question here involved was ably discussed by Judge Waite in the case In re Claflin, G. A. 6082 (T. D. 26514), in which the distinction between the act of 1890, corresponding in the main features with the existing statute, and those under review in the cases cited was considered.
In the matter of Newman & Co. (T. D. 14929), in construing section 19 of the act of July 10, 1890, in which case cloths were dutiable according to their value by the square yard, the board said:
In determining the value of merchandise subject to an ad valorem duty, section 19 aforesaid requires the appraiser to include the amount of all costs and charges as therein specified.
In the matter of the Supplee Hardware Co. (T. D. 16806) the board had under consideration paragraph 138 of the act of 1894, which provided a sliding scale of duties on penknives and pocketknives, de*28pendent upon the value per dozen. The merchandise in question consisted of pocketknivos invoiced at less than 50 cents per dozen, but with the value of the cases added and proportionately distributed, made the cost and appraised value of the invoice to exceed 50 cents per dozen. The goods were accordingly returned by the appraiser. as pocketknives valued at more than 50 cents per dozen, including the proportionate value of the cartons and cases, which was distributed pro rata as part of the market value of the merchandise. The board held:
In making appraisements under this section, the value of the cases or other coverings is as much a part of the market value of the imported merchandise as the per se value itself of such merchandise. And this is so for all tariff purposes involving the assessment of duties, except when a different rule is specially provided in particular instances.
These cases were cited with approval and the rule of the cases followed by this court in United States v. Francklyn, supra. Note opinion of Judge Somerville (T. D. 32378).
So that it has been determined by this court that in the performance of the duty imposed upon the appraiser under subsection 10 to appraise the market value or wholesale price of merchandise at the time of exportation to the United States in the principal markets of the country whence the same has been imported, and the number of yards, parcels, or quantity, the appraiser is required to include the value of cartons, cases, etc., as part of the market value.
I think the decision in this case should be affirmed