dissenting.
I respectfully dissent on the authority of United States v. European Trading Co., 26 CCPA 103, C.A.D. 1, a most pertinent decision of this court dealing with the question of premature appeal which I do not find mentioned in the majority opinion, though relied on below and especially by appellant here.
It is a bit obvious that the appraiser cannot send out a written notice of appraisement without first maldng the appraisement and the first question here is, when did he make it ? He told appellant’s agent, Mr. Snead, himself a former assistant and acting collector of customs, that he had made it on October 28, that information having been given to the agent on November 2, 1960, on the same day the assistant collector confirmed that the appraisement had already been made. Thereafter, on November 2 and 3 the appeals to reappraisement were filed.
Who is better qualified to know when the appraisement is made than the appraiser himself? Note the recitation in the opinion below, quoted by the majority, of the fact that the assistant collector “upheld” the appraiser in his right to have made the appraisal on October 28, though it was the same day he sent out the notice of probable unpaid duties. Note further that Customs Regulations Section 8.29(c), quoted in footnote 1 of the quoted opinion tells the appraiser that in sending out such a notice he need not withhold his report of appraisement. In other words, the notice of probable unpaid duties and actual appraisement can go forward simultaneously, as they did in this case. As the single judge below stated it:
He was, however, informed that appraisement had been completed on the same date the notices -were issued, under authority of section 8.29(c) of the Customs Regulations, as amended.
Another statement by the same judge, not quoted by the majority, was:
The regrettable aspect of the situation which is here revealed is that quite clearly both the appraiser and the assistant collector advised the representative of the plaintiff that the subject entries had been appraised on October 28, 1960, the date when notices of probable unpaid duties or taxes were forwarded. [My emphasis.]
I do not feel the legal helplessness in the face of such “regrettable” facts which the majority and the tribunals below seem to feel.
While section 501 no doubt requires the appraiser to give a notice in writing, for the benefit of the importer, I do not see where it requires the importer to sit with his hands folded until he receives such a notice, *94after lie has already been advised of the making of an appraisement by the two people most concerned on behalf of the Government, before filing an appeal. The second sentence of section 501, relating to such appeals, as distinguished from the first sentence which is the notice requirement binding the collector but not necessarily the importer, quite clearly says tha/fc the decision of the appraiser (not the notice of the collector) shall be final and conclusive unless appeal is filed, inter alia, “within thirty days after the date of personal delivery * *
I am unable to see the “precise procedure” which the majority finds so conclusive here. In fact, section 501 seems rather confusing to me. First, it refers to a “written notice” by the collector. This sentence was added in 1930, and later in part, to the 1922 section 501 which did not contain it. Next it mentions a “decision” by the appraiser. Then, as to the time for filing the appeal, it first mentions sixty days from the appraiser’s “report.” If I read the statute aright, as it was read in United States v. W. X. Huber, 41 CCPA 69, C.A.D. 531, that refers to a report by the appraiser to the collector under section 500 (a) (5). Next, it refers to appealing within thirty days after “personal delivery” without stating what is to be personally delivered.1 The majority seems to presume a reference here to the written notice required in the first line of the section but it could as well be personal notice of the appraiser’s decision; the personal delivery clause follows directly after the reference to the report but surely it does not refer to that because the report is delivered to the collector, not to the importer. The next clause states the third alternative, within thirty days of the mailing of the written notice, if one is mailed. Three different time-limit provisions thus appear in the statute, the starting events being (1) an appraiser’s report to a collector, (2) a personal delivery of something or other by someone and (3) the mailing of the written notice. I can find nothing in reason or logic or policy which requires us to insist that the something or other is the collector’s written notice in a situation where both the appraiser and the assistant collector have personally advised the agent that the decision of the appraiser has been made (presumably it was written down somewhere) and that he had better file his appeal. Why must he stand around waiting f qt a written notice ?
Time limitations on appealing from decisions are cut-off provisions to put an end to a right, not penalties for being too diligent in pro*95tecting the right. We are not faced with a situation where no ap-pealable decision had been made. The worst that can be said is that the Government had not yet got around to mailing out the notice of a necessarily preexisting decision.
The European Trading case, supra, involved a contention that an appeal from a single judge’s decision on reappraisement was premature, rather than an appraiser’s decision as here, but several comments made by this court in reversing the Customs Court holding that the appeal was premature are most appropriate to the present case:
It is well established that statutes giving the right of appeal are liberally construed in furtherance of justice. Lewis’ Sutherland Statutory Construction, section 717.
* * * ❖ % *
The paragraph [501] also provides that an importer may appeal within thirty days after notice to him of the appraisement. Under the ruling before us, an importer could not appeal to reappraisement either before such notice was received or upon the same day that such notice was personally delivered to him * * *. ,
❖ * & # * * *
It is our view that, in the various limitations with respect to appeals and applications for review, Congress did not intend that no action could be taken before the period of limitation had commenced, if in all other respects the same conditions existed before the commencement of such period as were present during the period of limitation.
That is the situation in 'the case at bar — the appraiser’s decision had been made and personally delivered to appellant’s agent within the express language of section 501, liberally construed, and the conditions were exactly the same then as throughout the thirty days following the mailing of the notice in writing, which notice the majority finds so significant.2
The European Trading case principles of construction seem to me to compel a reversal. My analysis of the lower court’s opinion convinces me that after discussing a large number of irrelevant matters' and making a number of assumptions about what section 501 pro*96vides which are not compelled bj any precedents,' it makes an a ^priori, and hence unnecessary, decision that the appeal was premature. I am not impressed by the fact, if it be a fact, that the appraiser might have changed his mind. He did not. Even courts can change their decisions after they have been entered — and they do. But this does not require the losing party to delay his appeal until such change is no longer a possibility.
One reason we have a judiciary as part of our “government of laws” is historical recognition of the fact that legislatures, being human institutions composed of fallible men, cannot write perfect statutes and that what they do write is bound to require interpretation, construction, and application to unforeseen fact situations.
The supposedly “clear and readily understandable language” of section 501 happens to be open to two interpretations, one of which validates the appeal here taken and the other of which invalidates it. Our function as the judiciary, therefore, is not to declare that ambiguous language has only one meaning but to select that meaning which promotes justice and respect for our “government of laws.”
The “law,” in this instance, having been left somewhat at loose ends by Congress, is in our keeping. The dissenters do not suggest that power be assumed; it is imposed upon us and it is a sacred trust. We should not pretend we do not have it. The majority is exercising it to deny appellant his right to an appeal on the strange theory that that which is done too soon is to be treated as though it had not been done at all.
Procedurally, the appeal filed by appellant, albeit too early to have “legal” effect according to this decision, has practically sufficed to bring the case all the way to this court, though to no purpose. The prodigious efforts of 5 judges here and 3 below, not to mention the lawyers, would have been better expended in determining the correctness of the appraisement than in this sterile glorification of a senseless technicality.
A reversal in this case would not dispense with the written notice required by section 501, a notice which actually was given and, in any event, is not for the protection of the Government. It would open Ho floodgates to the entertaining of dilatory appeals. There certainly is no likelihood of a flood of premature appeals. Nor would it create any “administrative and legal chaos.” It would merely permit one who asked for judicial review, more promptly than do most litigants, to have it (granting such review being the sole object of the statute) and make clear that this court does not approve a policy of construing ambiguous statutes, intended to afford a right of review, in such manner as to deny that right, when asked for with utmost diligence. 3 Sutherland, Statutory Construction § 6807 (3d ed. 1943), states (footnotes omitted) :
*97Statutes giving the right of appeal are liberally construed in furtherance of justice, and an interpretation which will work a forfeiture of that right is not favored. Thus provisions limiting the time for bringing an appeal are liberally interpreted so that the party pursuing the remedy of appeal will not be defeated on mere technicalities. * * * Statutory requirements of notice, and the procedure of perfecting an appeal are given a liberal extension to make certain that the case will be considered on its merits by the appellate court.
Suppose we accept the reading of section 501 adopted by the government attorneys (though not by the government customs agents), accepted by the majority here, that the time for taking an appeal is a thirty day period beginning with the mailing of the notice of appraisement by the Government. The fact, which seems totally to have escaped the attention of the majority, is that on each and. every day of that thirty day period appellant’s appeal papers, in proper form, were “filed” in the proper Government office. The majority decision necessarily rests on the tenuous and meaningless distinction between the act of filing a paper and the fact of its being on file. The result is like excluding a ticket-holder from the ball park on the ground that he was standing in line when the gate opened. The words of the statute are: “filed * * * with the collector within thirty days * * The appeal was filed with the collector within thirty days by being on file with him during every one of the thirty days. No authority whatever is cited to support the limited construction which restricts the word “filed” to the initial act of placing on file. I submit that any paper is “filed * * * with the collector” at any time when he has that paper in his file and that the appeal here was so filed throughout the whole of the statutory appeal period.
While it is highly desirable that we should promote orderly procedure in the law, when a statute is so construed and applied as to penalize diligence, of all things, without benefiting anyone in the process, it behooves us to pause and consider what the purpose of law is.
It is interesting to note that this obscure language comes from section 501 of the Tariff Act of 1922 which did not contain the first sentence of section 501 requiring the written notice. There was therefore no prior reference to a written notice to function as an antecedent for the words “personal delivery.” The former times were 60 days after the appraiser’s report to the collector, 10 days “after the date of personal delivery” — of what was not then and is not now stated — and finally 10 days after mailing of a written notice, that being the first reference in old section 501 to a “written notice.” The section 501 referred to in the Peabody case cited below (12 Ct. Cust. Appls. 354, T.D. 40491) was not the same 501 we have before us.
Of course the mailing of the notice can be very significant If the government fails to send it and then seeks to deprive the importer of some right. But since the notice is for the protection of the importer, it would seem that his right to receive it is a right he could' waive. What would the contention of the government be where the agent, Snead, had been in the Customhouse on November 10, had been shown the notice and told that it would be mailed in the afternoon of that day, whereupon he decided to file the appeal to reap-praisement in the morning? Would it be held “untimely” because filed before the mailing of the notice? That Is the kind of technical legal nonsense this court would have none of in the European Trading case. The single judge herein got the message and said in his opinion:
* * * the court observed that a statute of limitations does not necessarily prevent action prior to the commencement of the period prescribed. As noted by the court, the purpose of a statute of limitations is to operate as a cutoff date beyond which all rights are fixed and determined * * *.
But he got it only in part and then became involved in the question of when court decisions are “final.” >We do not have that issue here.