concurring in the conclusion:
Under the stipulation the majority passes upon questions not properly before the court. The stipulation is fatally defective in material facts and does not raise the question of the validity of the regulation of 1916. First — it is not stipulated that the price of 4.15 Belgian francs was the freely offered price for such or similar goods on June 21, 1939. Free offers might have been made at a price other than that which appellant paid on delivery of the goods offered on that date; second — it is not shown that there were not free offers, sales, and deliveries made of such or similar merchandise at a price greater than 6 Belgian francs per meter, packed, less 3 per centum, prior to the time the appraiser applied the new price to the old contract and on such a date as to show the value of the instant goods.
Therefore, it is apparent that even if the importer has proved the value established by the appraiser to be erroneous, it has not carried the burden which the law requires of proving that its claimed value is the proper one. Such a holding might well end the case.
The appraised value, though stated to be export value by the appraiser, might be the proper value under cost of production or Amer-*210if.fi.Ti selling price. If there were other offers, sales and deliveries (not negatived by the stipulation) at a price greater than 6 Belgian francs per meter, packed, less 3 per centum, prior to the time the appraiser applied the new price to the old contract and on such a date as to show the value of the instant goods, the regulation would not be violated and could not be questioned in this proceeding.
Aside from any effect of legislative ratification of long-continued administrative practice, I am not convinced that the regulation on its face is invalid or contains any provision not sanctioned by the statutory definition of “ export value.” The gist of the decision of the majority is to the effect that the term “freely offered for sale to all purchasers for exportation to the-United States” was erroneously interpreted by the Secretary of the Treasury, and that, therefore, it was a “nullity” and “invalid” from the start. The majority holds that the term is not “ambiguous” and that there can be no legislative ratification of what the majority regards as an invalid regulation.
As I see it, there is more language in the statutory definition of “export value” than the term “freely offered for sale to all purchasers for export to the United States” to be construed, and to be given' application. The mandate of the provision is that the export value shall be “the market value or the price, at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale to all purchasers.” The regulation in controversy attempted to construe the statutory definition so as to afford some standard as to what offers or sales should be accepted as reflecting the price on the date of exportation of the exported merchandise. The regulation merely said: “We will let the old price continue until it is shown to have been changed by deliveries having begun at a new price.” None might ever be shipped at the new price and the old price might continue to control. This was a reasonable provision; one that was fair to all and was never, as far as I know, questioned or disturbed until the Treasury Department, more than a year before the goods involved were ordered, decided to change it. Congress, I think, was satisfied with the regulation which is reasonably within the power granted to the Secretary of the Treasury.
If the controverted regulation had been in effect when appellant’s importation was made, no one, I think, could logically contend, under the facts at bar, that a clear case of legislative ratification of long-«ontinued administrative practice was not shown. Three tariff acts 3had passed, all using substantially the same language, but the difficulty with appellant’s position is that long before it made its order the -regulation had been changed by the same authority that made it. Appellant argues that if Congress had ratified it, the Treasury Department had no right to change it and could not do so. I had thought this was the law, but the Supreme Court has held otherwise in a very *211recent decision. In Helvering v. Wilshire Oil Co., 308 U. S. 90, regulations involving the meaning of such, terms as “net income,” “gross income,” “reasonable allowance for depletion,” and “development expenses” were involved. The words, in themselves, were not ambiguous, but, broadly speaking, the statute was indefinite in its terms so as to make their application difficult. The Supreme Court in an opinion by Mr. Justice Douglas, in that case held a regulation valid which changed one claimed to have received legislative sanction and held that the same rule-making power has the right to change it and the first one does not become “frozen into another act merely by reenactment of that provision, so that that administrative interpretation cannot be changed prospectively through exercise of appropriate rule-making powers.”
So, in the instant case, I do not think legislative sanction of long-continued administrative practice applies, not because the language is clear, not because the regulation was “invalid” but because, regardless of its validity or invalidity, it had been changed by what the Supremo Court characterizes as the Treasury Department’s exercisé of its “continuing rule-making power.”
So, in view of the Wilshire Oil Co. case, supra, I agree with the trial court in its holding that there was no long-continued administrative practice in existence at the time importer made its order or its importation and therefore it could not claim a recovery under that theory of law.
As I understand the view of the majority on the subject of legislative ratification of long-continued administrative practice, it would almost completely wipe out the effectiveness of such a doctrine, although our Supreme Court in many leading decisions, old and new, has given it controlling influence in the decision of cases. A regulation is not invalid even though it erroneously interprets a statute, as long as it is a reasonable one and is not a direct violation of the law. Obviously, the Secretary of the Treasury has no power to legislate, and it is only where there is doubt as to the correctness of the Secretary’s interpretation of the statute that the doctrine of legislative ratification could ever be raised. The doctrine is based upon the theory that Congress is satisfied with the manner in which the rule-making power performs, and has adopted its interpretation as if it were its own and expressed in the statute itself.
I regard it as most unfortunate for any court to make the mistake of mailing hair-splitting distinctions between that which is “ambiguous” and that which is not in determining a question of the character at bar. Likewise is it unfortunate to fail to apply the doctrine of legislative ratification of long-continued administrative practice under the well-settled rule upon the ground that the regulation is “invalid”
*212or a “violation of tbe law” where it appears that the regulation is merely one reasonable interpretation of a statute. This phase of the rule is stated in a number of interesting Supreme Court cases. In National Lead Co. v. United States, 252 U. S. 140, 145, the Supreme Court, in referring to a departmental regulation relating to the statute authorizing the recovery of drawback “equal in amount to the duties paid on the materials used [etc.]” said:
The statute, thus indefinite if not ambiguous, called for construction by the Department and the regulation adapted to cases such as we have here, commends itself strongly to our judgment. [Italics mine.]
From Edwards v. Darby, 12 Wheat. 206, to Jacobs v. Prichard, 223 U. S. 200, it has been the settled law that when uncertainty or ambiguity, such as we have here, is found in a statute great weight will be given to the contemporaneous construction by department officials, who were called upon to act under the law and to carry its provisions into effect, — especially where such construction has been long continued, as it was in this case for almost forty years before the petition was filed. United States v. Hill, 120 U. S. 169. [Italics except case names mine.]
* * * The reenacting of the drawback provision four times, without substantial change, while this method of determining what should be paid under it was being constantly employed, amounts to an implied legislative recognition and approval of the executive construction of the statute * * *.
The drawback claimant had made, from each bushel of imported linseed, 20 pounds of linseed' oil and about 36 pounds of oil cake. He exported the cake and claimed drawback based upon its weight. In that case the department bad ruled, in said regulation, that the statute did not authorize the exporter to obtain drawback based upon weight but upon the relative values of the oil and the oil cake. The oil was much more valuable than the cake. The statute (like the instant one) gave no guide for its application. It was indefinite. The Supremo Court not only stated its approval of the regulation but held that the department's interpretation had received implied approval by Congress and that it should not be disturbed.
If the rule-making power in the instant case had not changed the regulation, I would hold the same here. The regulation was a reasonable means of determining what Congress meant with reference to the export value of merchandise bought subject to order which could not be delivered for a long while. It was obvious to the rule-making power that goods bought at a certain price in June and delivered in October might be worth more or less on the date of exportation than they were in June. In construing the statutory definition it did what the courts have done and what the majority opinion attempts to do in this case — give probative value to sales and offers, made not on the date of exportation, but near enough such date as to reflect the value on that date. Courts have held, so frequently as to require *213no citation, tbat a sale made at some date reasonably near the date of exportation of merchandise, the value of which is in controversy, may reflect the true value on the date of exportation, and this is true ordinarily when no change in value is shown. The controverted regulation which the majority holds to be invalid rejected new offers as lacking bona fides unless deliveries had begun. This was upon the simple process of reasoning that a mere offer, made possibly to establish a market value, without the possibility of delivery and without any delivery ever being made could not change the effect of the old offer at a certain price.
Many different decisions by the Supreme Court could be referred to where legislative adoption of long-continued administrative practice was discussed and where the language was far less indefinite as applied to the question then at bar than the statutory definition in controversy here.
It seems to me that the danger in the opinion of the majority lies in holding that by reason of lack of ambiguity legislative adoption of long-continued administrative practice does not apply. The language may be plain in a statute and it may be given application by administrative officers in more than one reasonable way. The definition of “export value” was given application in this instance, I think, in the regulation in controversy in a reasonable way, although other interpretations could reasonably be indulged. It is this kind of situation which has always brought forward the statement by the courts that where substantially the same language has been used in reenactments, administrative interpretation long continued will not be disturbed.
The rule is laid down in New York, New Haven and Hartford Railroad Co. v. Interstate Commerce Commission, 200 U. S. 361, 401, as follows:
* * * the familiar rule that a construction made by the body charged with the cnfuruciiiunt of a statute, which construction has long obtained in practical execution, and has been impliedly sanctioned by the reenactment of the statute without alteration in the particulars construed, when■ not plainly erroneous, must be treated as read into the statute. * * * [Italics ours.]
See also Brewster v. Gage, 280 U. S. 337.
To decide the issue before us it is wholly unnecessary to rule upon the validity of a regulation which was no longer in existence, but it could have been and should have been held, as the trial court held, that there was no long-continued administrative practice in existence which affected appellant’s rights. Helvering v. Wilshire Oil Co., supra.
It seems to me that the greatest violence to the law is done in the decision of the majority by holding that the statutory provision is *214not ambiguous, and that, therefore, resort to the doctrine of legislative ratification is barred. The mere fact that we might feel (which I do not) that a better interpretation of the perplexing situation confronting the Secretary of the Treasury in interpreting the indefinite language used by Congress might have been suggested is no warrant for holding that the regulation was a “nullity” and invalid.
A situation similar to the one which I am now discussing arises in the decision of customs cases where the question of seeking the aid of legislative history for the purpose of arriving at congressional intent of language used in tariff acts is being considered. If the language is plain and has but one meaning, the rule is well settled that legislative history of the provision cannot change it. This is on the theory that no construction is necessary. But it has been frequently held that although the language is plain, the congressional intent is thrown in doubt when more than one tariff provision covers the same imported material. See American Net & Twine Co. v. Worthington, 141 U. S. 468, and United States v. E. De Grandmont, Inc., 21 C. C. P. A. (Customs) 17, T. D. 46345. In such cases it would be erroneous to hold' that the language is plain and unambiguous and therefore that we cannot seek the aid of legislative history. And so it is here. The words “on the date of exportation” in then’ ordinary acceptance are quite plain and simple of meaning, but when practical application is being made of the words great difficulty has been encountered in determining just what Congress meant, and the courts, including the majority in this case, have concluded that the value on the date of exportation does not necessarily mean some offer or sale made on that particular date, but on some date near enough, no change being shown, to reflect the value on that date.
In concluding this phase of the case, I would like to add that I do not think that the case of United States v. Baldwin Universal Co. 18 C. C. P. A. (Customs) 395, T. D. 44641, has any material bearing on the issue at bar. We never held that an offer must be accepted as proving a proper dutiable value when no sales or deliveries had been made. We did hold that a price list might be some evidence which the trial court should weigh in arriving at the question as to whether or not the price list reflected the value on the date of exportation.
I am in disagreement with the majority opinion in holding that the free offer, on September 20, 1939, for future delivery of similar merchandise for exportation to the United States, at the price of 6 Belgian francs per meter, packed, less 3 per centum, constituted “very substantial evidence” warranting the holding that this established export value on the date of exportation of the instant merchandise. The instant merchandise was exported on October 25, 1939. The goods offered and purchased on September 20, 1939, were not to be *215delivered until January, February, or March of the next year. The record in this instance shows that the market value was going up. When the goods ordered September 21 were exported, orders for future delivery might have been much higher or much lower than 6 Belgian francs per meter.
It may be said here that this line of reasoning may lead to the conclusion that there is no export value as defined by the statute for goods not subject to reasonably prompt delivery unless similar goods which could reflect that value had been sold in due course of trade for prompt delivery and which were on hand at the time the order was made. It may be that the statutory definition of “export value” does not fit this kind of case. If so, there are other ways of determining this value which can readily be resorted to. But a statement of facts proved by an importer which does not show the correct export value, does not warrant an invalidation of the appraisement which may be the correct value under a proper statutory definition. The offer made on September 20 did not say: “These goods are worth 6 Belgian francs today.” It said they were worth 6 Belgian francs the next January. There is no showing in the instant record that the order of September 20 was ever delivered. The price might have changed and the foreign manufacturer might have sold elsewhere at a different price.
I quote the following from the majority opinion:
We find nothing in the stipulation herein to the effect that such or similar merchandise could not have been manufactured and promptly delivered at the September 20, 1939 price.
Paragraphs 7 and 8 of the stipulation read:
7. That in the ordinary course of trade such or similar merchandise was not carried in stock by the manufacturer in Belgium of the instant merchandise for spot delivery, and no deliveries had been made of such or similar merchandise by the manufacturer of the instant merchandise at the price of 6 Belgian Francs at the time of exportation of the merchandise involved herein from Belgium, namely, October 25, 1939.
8. That in the ordinary course of trade, such or similar merchandise was not carried in stock by other manufacturers in Belgium of merchandise similar to that imported herein for spot delivery, and no deliveries had been made by other manufacturers of such or similar merchandise at the price of 6 Belgian Francs at the time of exportation of the merchandise involved herein from Belgium, namely, October 25, 1939.
I find no warrant in the record for the above-quoted statement of the majority. Surely the stipulation should be interpreted to say and mean that there were no spot delivery goods of the character manufactured and sold for exportation and the only showing in the stipulation as to when deliveries could be made was long after the date of the order. Surely it was the intent of the parties in the stipulation, which in some respects the majority has most generously inter*216preted, to not suggest even the possibility of the quick delivery of similar goods near the date of the exportation of the instant merchandise. It is definitely stipulated that the manufacturer of the instant merchandise and other manufacturers in Belgium„did.uQt. cayry such or similar merchandise in stock which could be sold for quick delivery.
I am in hearty accord with the following sentence:
* * * Furthermore, there is nothing in said stipulation overcoming the presumption of the correctness of the appraisement by the local appraiser.
The last sentence is about all that is necessary for the decision of the instant issue.