specially concurring:
I concur in the conclusion stated in the opinion by Presiding Judge Graham as follows:
* * * the judgment of the Appellate Division should be reversed and the cause remanded to the division with instructions to affirm the judgment of the trial court dismissing the appeals to reappraisement. * * *
However, I cannot agree with the reasons given therefor. As I read his opinion, it is conceded that there was no majority opinion rendered resulting in the judgment of the appellate division of the Customs Court considered by us in the case of Cottman & Co. v. United States, 20 C. C. P. A. (Customs) 344, T. D. 46114. Each of the judges of said appellate division, Judges Cline, Evans, and Young, wrote separate opinions. Judge Cline wrote an opinion expressing the view that no foreign value or cost of production of the merchandise involved was shown by the record, and stated:
* * * As there is no other satisfactory evidence of statutory cost of production in the record, the appeals might well have been dismissed by the trial court, * * *. (Italics mine.)
She concluded her opinion with the following:
We conclude, as a matter of law, that the decision of the trial court, published in Cottman v. United States, T. D. 44581, is contrary to the weight of the evidence, and it is therefore reversed and the cause remanded for further proceedings consistent with our decision herein. Let judgment be entered accordingly.
Judge Evans in his opinion agreed with Judge Cline that the record did not establish foreign value of the merchandise, and that “cost of production should furnish the basis of comparison.” He closes his opinion with the following:
In view, therefore, of the deficiencies in the record hereto pointed out, it is my opinion that this case should be remanded in order that the appellant may have an opportunity to supply the elements of cost of production which he failed to produce, and to enable the Government to rebut, if it can, the proof offered in relation to such cost of production. However, inasmuch as each of my associates disagree with me concerning this disposition of the cause, I join in Judge Cline’s order.
Judge Young wrote a dissenting opinion.
Bearing in mind that Judge Cline’s opinion was not a majority opinion, and that the opinion of Judge Evans was in no sense subordinate thereto by reason of its being written in the form, of a concurrence, in my judgment it clearly appears from the above quotation that Judge Evans did not concur in the view of Judge Cline that the appeals to reappraisement might well have been dismissed by the trial judge, any more than Judge Cline concurred in the view of Judge Evans that the case should be remanded to the single judge with directions for a new trial. They did concur, however, in the view that neither foreign value nor cost of production of the mer-*383cbandise was established by the record, and they did concur in the judgment rendered in the case, which reads as follows:
These cases having been duly submitted for decision to the Third Division of the United States Customs Court, and the Court having made and filed a. decision herein directing that judgment be entered in accordance therewith;, now, in conformity with said decision,
It is hereby ordered, adjudged, and decreed that the decision of the trial' court, published in Cottman v. United States, T. D. 44581, being contrary to the weight of the evidence, is hereby reversed and the cause is remanded for further proceedings consistent with our decision herein.
Witness Hon. Genevieve R. Cline, Hon. Walter H. Evans, Judges of the United States Customs Court, and the seal of said Court, at the City of New: York, this 22nd day of October, A. D. 1931.
[seal.] J. W. Dale,
Clerk, U. S. Customs Court.
Upon appeal to this court we affirmed said judgment (Cottman & Co. v. United States, supra) and in our opinion stated:
As a result of these considerations we arrive at the conclusion that the court, below did not err in finding that neither foreign-market value nor cost of production, is shown by the record, and we agree with the conclusion of Judge Cline that the-appeal to reappraisement might well have been dismissed by the trial judge.. (Italics mine.)
It will be observed that there was no intimation in our opinion that, a majority of the appellate division entertained the view that the-appeals to reappraisement might well have been dismissed, but we-agreed with Judge Cline’s view that they might well have been dismissed, and we merely affirmed the judgment of the appellate division which remanded the cause “for further proceedings consistent with, our decision herein.”
I submit that the only decision made which received a concurrence-of two judges of the appellate division was that the record did not. establish either foreign value or the cost of production of the merchandise, and under the remand the trial judge was warranted in rendering-any judgment which, in his opinion, the record might justify, except, a finding upon such record of either foreign value or cost of production of the merchandise. If either the Government or the importer was dissatisfied with the conclusion of the trial judge, an appeal would lie following the regular procedure, to the appellate division, and there the parties were entitled to a review of the decision of the trial judge uponitsmerits. Presiding Judge Graham’s opinion denies this remedy, and reads into the judgment of the appellate division a mandate based upon an obiter expression of one of the judges of the division, which expression was approved by us, our approval also being obiter. Had it been the view of this court that the appeal should be dismissed by the trial judge, we should have modified, instead of affirming, the judgment of the appellate division before us by including a direction to the trial judge to dismiss the appeals. This we did not do, but *384merely affirmed the judgment of the appellate division remanding the cause to the trial judge for further proceedings consistent with the decision of said appellate division.
The appellate division complied literally with our mandate, as is shown by the following judgment appearing in the record before us:
This cause having come on for hearing before this court, and a decision having been rendered, and the appellant and appellees having thereafter appealed from said decision to the United States Court of Customs and Patent Appeals and said United States Court of Customs and Patent Appeals having transmitted to this court its mandate, by which it appears that the judgment of the United States Customs Court was affirmed,
Now, in conformity with the said mandate of the Court of Customs and Patent Appeals,
It is hereby ordered, adjudged, and decreed that the original judgment of this court in this case having been affirmed is hereby made the final judgment of this court.
Genevieve R. Cline,
Walter H. Evans,
Judges of the United States Customs Court.
Dated at New York. N Y.. this the 8th day of February 1933.
Upon tbe return of the cause to the trial judge, no action was taken thereon until October 1934, when the present counsel for appellee, having been substituted for the previous counsel, entered on October 11, 1934, a motion—
that the above-named appeals to reappraisement be dismissed and the entered values affirmed upon the ground that the original appraisements herein were unwarranted, illegal, null, and void for the reason that there was no foreign market value as found by the appraiser, nor any legal basis for cost of production for this phosphate rock upon which a dumping duty could be based.
The record shows that on November 14, 1934, said motion was argued, and on November 22, 1934, the trial judge rendered a judgment simply dismissing the appeals to reappraisement, and made no finding that the appraisements were null and void. A motion for rehearing was denied by the trial judge, whereupon appellee filed an application for review of the decision and judgment of the trial judge.
Such review resulted in the decision and judgment of the appellate division now before us in this appeal.
The said decision of the appellate division was unanimous, Judges Cline, Evans, and Keefe participating. It will be observed that it was Judges Cline and Evans who concurred in the judgment before us in Cottman & Co. v. United States, supra.
In this unanimous decision we find the following:
The record before us shows that, although the decision of one member of this division, published in Reap. Dec. 2136, stated that the appeals “might well have been dismissed by the trial court’’ under the principle stated in certain cited cases in which every element of dutiable value had not been shown by competent *385evidence, nevertheless the judgment order, signed by a majority of the members of this division, merely reversed the court below and remanded the cause “for further proceedings consistent with our decision herein”, thus leaving the actual disposition of the cases entirely in the discretion of the trial court, the only directions being that further proceedings should be “ consistent” with the decision of the majority, published in Reap. Dec. 2136. This judgment was affirmed by the Court of Customs and Patent Appeals (20 C. C. P. A. 344, 360, T. D. 46114), the majority opinion therein containing the statement that “we agree with the conclusion of Judge Cline that the appeal to reappraisement might well have been dismissed by the trial judge.” We are of the opinion that these statements in the appellate decisions cannot be construed as other than obiter dicta, since the judgment orders issued pursuant thereto do not specifically direct the lower court to dismiss the appeals.
I am in entire accord with, the views above expressed, and while the appellate division in said quotation construed its own prior mandate, in my judgment the construction there given is the only proper construction that could be put upon said prior mandate.
Later in the unanimous opinion of the division is found the following:
* * * Judge Evans concurred in the judgment order remanding the cause for further proceedings, but expressed the view that there was no evidence in the record to support the findings of value made by the appraiser in several of the cases, and also stated that he believed the cause should be remanded to grant the parties a further opportunity to prove cost of production. On the question of cost of production, this member of the division stated, “in the absence of a statutory foreign-market' value then the cost of production shall be the basis of computation” under the provisions of section 202 (a) of the Antidumping Act of 1921; but held that the evidence introduced in the cases at bar “failed to establish every element of cost of production as defined in section 206.” It was in connection with the latter statement that this member of the division commented that the appeals “might well have been dismissed” by the trial court.
We are of the opinion that, in view of the aforementioned decisions of this division, the trial court, in conformity with the judgment order directing that further proceedings consistent therewith be had, was required to consider: (o) whether in view of the decisions of the appellate tribunal the evidence established that no statutory foreign-market value existed in the country of exportation during the period involved; (6) whether the importer should be given a further opportunity to establish evidence as to cost of production; (c) whether the appeals should be dismissed for failure of proof; and (d) whether, under the law as developed by the decisions in the case, the appraisements made by the appraiser were invalid. Cross-appeals were filed against the aforementioned decisions of this division of the court, and, in the final determination thereof, the majority opinion of the Court of Customs and Patent Appeals set forth fully their reasons for affirming the judgment below. When the cause eventually reached the trial judge on remand, he had before him the expressions of opinion not only of this division but also of the Court of Customs and Patent Appeals. From the broad statements of law and fact set forth in the majority opinion of the last-named court, we are of the opinion that the trial court had ample authority for finding that the appraiser’s returns of foreign-market value herein are void as a matter of law. * * *
*386As stated in Presiding Judge Graham’s opinion herein, the appellate division modified the judgment of the trial judge and remanded the cause to him “with, instructions to issue judgment setting aside the void appraisements made under the Antidumping Act of 1921, and dismissing the appeals so far as they refer to nonexistent appraise-ments under the Tariff Act of 1922.”
Presiding Judge Graham’s opinion herein fails to pass upon the . question of law, whether, upon the record, the appraisements appealed from should be held to be null and void, but reads into the judgment of ■the appellate division, (affirmed by us in Cottman & Co. v. United States, supra), which judgment was a general remand for further proceedings “consistent with our decision herein”, an obiter expression of one judge of the appellate division and a similar obiter expression of our own,- viz., “we agree with the conclusion of Judge Cline that the appeal to reappraisement might well have been dismissed by the trial judge.” Certainly, so far as the judgment before us upon this appeal is concerned, there is nothing inconsistent with any. decision theretofore rendered by either the appellate division or by this court, for it involved a question of law that was not involved in any decision theretofore rendered by the division or by us.
It being my opinion that appellee, under the general remand, had the right to raise before the trial judge any question of law which could be raised upon the record and which had not been decided by the appellate tribunals, it follows that, if that opinion be correct, this court should decide the case upon its merits; this Presiding Judge Graham’s opinion does not do, but finds that the appellate division did not carry out our mandate, although it literally complied therewith.
The question of whether, upon'the record, the appraisements here involved were null and void is wholly a question of law, decided for the first time by the appellate division, although raised by appellee before the trial judge. This question, also, had never been considered by us in our prior decisions in this case.
It is my opinion that the appellate division committed error in holding said appraisements null and void, because I find nothing in the record from which such a conclusion may properly be drawn. It is true that in our decision in Cottman & Co. v. United States, supra, in affirming the judgment there appealed from, we held that neither foreign value nor cost of production of the merchandise was established by the record, but we did not hold that the record demonstrated that such cost of production could not be established.
The burden was upon the importer to establish that there was neither foreign value nor cost of production from which the appraiser could make a valid appraisement. Merely establishing that there was no foreign value was not the measure of the burden upon the importer. If such were the rule, an importer could win his case in *387any reappraisement proceeding by merely establishing that the particular value, foreign, export, etc., found by the appraiser was improper because the merchandise should have been appraised upon some other value.
In the case at bar, when it was determined that there was no foreign value of the merchandise, the burden was still upon the importer to establish either the cost of production or that such cost of production could not have been determined by the appraiser. Upon the record before us, there is merely a deficiency of proof of cost of production; in other words, the appellee failed to sustain the. burden upon it as to cost of production, and failed to establish that the appraisements were null and void. Hence the trial judge properly dismissed the appeals to reappraisement, and the appellate division erred in holding the appraisements null and void. I therefore agree with the conclusion reached by Presiding Judge Graham, but most, earnestly disagree with the reasoning upon which such conclusion is based.
I am authorized to say that Judge Hatfield concurs in the views herein expressed.