dissenting, with whom Ktrkpatrick, Judge, joins.
In dissenting from the majority opinion, I do so because the importers’ claim seems to me to be defective for two reasons: First, the importers have failed to state a legal ground upon which relief can be granted. Second, even if importers’ case can be interpreted as stating a legal ground upon which relief can be granted, they have failed to establish any proper basis for a recovery.
With respect to the first defect, the importers here have protested on the basis that the collector charged too much for cartage of the unentered goods. While the majority apparently considers this an adequate legal basis for the protest, I do not. Here, as in any other protest, the importers must base their claim either on the failure of the collector to act in compliance with the applicable law and regulations, or that the applicable laws or regulations were invalid. It is well established in numerous decisions of this court12 that the collector is presumed to have acted lawfully, and that this presumption places a two-fold burden on the protestant to prove (1) that the collector erred and (2) that the protestant’s contentions are correct.
Here the importers allege neither invalidity of the applicable statutes and regulations, nor failure of the collector in any respect to comply fully with these statutes and regulations. Appellees do not deny liability for the expense of having the collector take custody of the goods, send them to the warehouse and hold them, nor do they challenge the validity of the statutes and regulations under which the collector acted. Appellees do not dispute the statutory grant of authority to the Secretary of the Treasury to promulgate regulations governing the procedures for the taking of unentered merchandise and its transportation and storage.
Appellees admit that the collector at all times acted in compliance with the regulations. The court below found that the contract under which these goods were handled was valid. No error in calculating the charges under the contract is alleged. The only error charged is that the admittedly authorized acts of the collector became, in the *167present instance, unauthorized because of the importers’ assertion that they could have had the merchandise carted for less money than the collector charged them.
If the importers’ legal rights have been invaded, it is incumbent upon them to establish the right invaded and the wrong committed. Here appelles have admitted liability and allege no wrong doing of the collector except for charging the flat rate cartage fee established by the general order cartage contract which the collector, acting under established regulations, had entered into with the cartage company. Therefore, it seems to me the importers have failed to state a cause of action upon which relief should be granted.
The majority cites Munn v. Illinois, 94 U.S. 113; Chicago, Burlington and Quincy Railroad Company v. Iowa, 94 U.S. 155; and Covington and Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204, as authority for the proposition that the importers’ legal right here grew out of some rule of an undefined origin that the charges of the collector must be “reasonable.” The Munn case holds that where the legislature has established maximum warehouseman’s rates as “reasonable,” the court may not look behind that determination. To the extent that that proposition has any application here, it seems to me it must prohibit a court from examining into the reasonableness of the amount of the charges assessed under the conditions here. The Quincy Railroad Company case involves the same problem as applied to railroads. The Covington Bridge Co. case turned on whether the State of Kentucky was attempting to regulate interstate commerce. I fail to see how these cases, dealing generally with the powers of states to regulate private enterprise, help to resolve the issues here.
With respect to the second defect, even assuming that the importers have a cause of action, they have failed to establish by competent evidence any factual basis for the recovery claimed.
The importers presented two witnesses who testified as to what the importers would be charged by a trucker acting under a private contract to transport the specific goods. No effort was made to prove what it would have cost the importers under a one-year general order cartage contract entered into under the admittedly valid regulations. The “expense” contemplated by the statute is that arising out of such a contract when the collector decides to let such a contract. Likewise, no evidence was introduced to indicate what cartmen would charge the importers on the basis of such a contract which requires the cartman to haul any goods at any time to any place for anyone; to bear absolute liability for loss or damage; to reimburse the collector for cartage fees incurred by reason of failure of the contracting cart-man to remove the goods within the time limit fixed by the contract; to absorb the cartage fees if the importer fails to claim his goods within one year; to be bonded; and to do all the foregoing under a *168contract which terminates if the cartman ever performs his duties negligently.
The statute makes an importer liable for the expense of such services. No evidence has been produced here by the importers to show that the amount charged to them for such services was unreasonable. It is improper, it seems to me, to evaluate the “reasonableness” of the charge for such services on the basis of the testimony of importers’ witnesses as to what they or their competitors would charge for a different service.
The importers could have avoided all of the charges now claimed to be “unreasonable” simply by entering the goods or securing an extension of time therefore any time until five o’clock on the evening of the second work day after the date the goods were unladened. So far as it appears from the record here, no effort was made by the importers to do either. Thus the importers in effect “dumped” their goods into the care and custody of the collector, thus making the collector an involuntary bailee, a common carrier and a warehouseman for the importers. It is only fair to require the importers, rather than the Government, to pay for such services.
If, as asserted by the importers, the amount charged for such services was “unreasonable,” it was incumbent upon them to show that the “unreasonableness” was not merely in the amount assessed under the annual general order cartage contract but that it arose out of an error of the collector or that the statute or regulation under which he acted was invalid. Failing to do so, I do not see how the importers are entitled to recover.
The fact that the Government elected not to introduce testimony on the “reasonableness” of the charges seems to me to be beside the point. The contract here in issue seems to be the best evidence on this point. Since no issue is raised by the importer, we must assume that all of the provisions of the statute and of the applicable regulation were complied with. The statute and the regulation requires that such a contract be entered into only after bids had been requested and then to be entered into with the cartage company having the lowest bid. Where those aspects of the contract have not been challenged, it seems to me the Government properly stood on the contract.
The error in the majority opinion seems to me to be evident in its anomalous result. By the decision of the majority the collector is required either to charge less than the “expense” as required by the statute, or he is required to exceed his authority under the statute and regulations to reduce the “expense” to the amount which the majority thinks is “reasonable.” In either event, the majority opinion requires the collector to act contrary to the statute and the customs regulations promulgated thereunder.
I would, therefore, reverse the decision below.
Atlantic Aluminum & Metal Distributors, Inc. v. United States, 47 CCPA 88, C.A.D. 735 and cases there cited.