DISSENTING OPINION
Barbee, Judge:While I concur in much that is said in the dissenting opinion of Judge Bland, there are certain facts in the case, and certain views of the applicable law, which I deem it my duty to present in this manner.
No testimony was offered at the trial below. The printed record shows that the entry was under bond an& the date of its liquidation. From the files in the case it appears that the importation, consisting of 44 bales of sponges, was entered for warehouse at the port of New York November 8 or 10, 1928; that six of said bales were sent to the appraiser’s stores for examination and there found and reported by the appraiser to the collector not legally marked; that on the 16th day of November following the collector issued to importer a notice in writing, the material part of which I quote:
Referring to your importation of sponges per S. S. Munamar arrived 11/10/23, entry No. 13893, 13881, you are informed that the appraiser has returned the invoice with the statement that bales Star 2873, 2639, 4016, 3906, 2643, 3616, and bales 3579, 21, 2928 are not legally marked as'prescribed by the existing tariff act.
You are, therefore, instructed not to dispose of any of the bales heretofore delivered to you under the provisions of your penal bond given at time of entry until such bales have been marked and released according to law.
When you have finished marking the goods in your possession you will execute the affidavit on the reverse side hereof and present this notice to the foreman, ninth floor, appraiser’s warehouse, 641 Washington Street, who will supervise the marking of the goods held in public store, and certify to the fact. You should then immediately return this notice, properly signed and verified, to the law division, room 304, customshouse, where, if the marking meets the requirements of law, a delivery permit will be issued. Mdse, will be transferred to 9th floor for marking at 9, 11, or 1.30 o’clock on the day this notice is presented.
Importer’s representative on November 22d made affidavit on the back side of such written notice that he had marked, or caused to be marked, the merchandise in the importation referred to in the notice “now in his possession,” by stenciling thereon the word “Nassau.” This affidavit is-followed by a notation purporting to be signed by a United States storekeeper dated “11/26/23 ” that “All legally marked except bales 22, 3730 delivered previous of notification on W H B 13893.” This is followed by a certificate purporting to have been made by a foreman addressed “Collector, Law Division, Customs House,” reading as follows: • *75and finally, by the notation, “Marking complete November 22, 1923.” There is no delivery permit among the files, and no consumption entry. The warehouse entry was liquidated May 12, 1924. The Customs Court did not expressly find that the importation had been delivered to importer.
*74This is to certify that the goods detained at public store have been legally marked, and that the person who did the marking states that the goods mentioned in the above affidavit were marked in the same manner.
*75A delivery permit must be issued before it is lawful to'deliver imported merchandise. Such permit must be signed by the collector and a comptroller of customs, if there is one at the port of entry. Sec. 523, Tariff Act of 1922; Customs Regulations of 1923, arts. 132 and 1185; United States v. Cronkhite, 9 Ct. Cust. Appls. 129, T. D. 37980.
I agree with the United States Customs Court in its finding that marking the bales with the word “Nassau” is not a compliance with the law, because that word does not indicate any country. There is nothing to show that the collector or any other customs officer directed that the merchandise be so marked, or that the collector accepted such marking as a compliance with the law.
From all the foregoing, I think it can not be held or assumed that when this case arose all the sponges had been delivered to importer. It should rather be concluded that they were still wholly or partly in either the public stores or bonded warehouse, or both.
In addition to this, I think the real fact is, as suggested in the opinion of the Customs Court, that the collector made a mistake and thought the bales were the articles imported, and on that theory assessed the 10 per centum duty required by paragraph 304 (a). This was clearly error, as pointed out in the majority opinion, and if the judgment below were affirmed on this theory alone, I would concur.
I can not agree with the conclusion of the court, as stated in the last part of the opinion, that-—
the objects of this law will be best advanced by holding, as we have in the cases hereinbefore referred to, that where the collector has permitted the goods to go into the commerce of the country without marking, that the presumption arises that he found the goods not capable of marking without injury, and that such presumption is not overcome simply by his afterwards assessing an additional duty upon them.
In my opinion no presumption arises, from the mere fact that the collector has delivered imported goods to the importer without causing them to be marked, that he has found them not capable of such marking within paragraph 304 (a); at least, that no presumption arises therefrom which affects, controls, limits, or rebuts the presumed correctness of his liquidation and assessment of the duty of 10 per centum ad valorem on the importation.
It is unnecessary for me to enter into any extended consideration of all the cases decided in this court cited in the main opinion as supporting the above-quoted conclusion. One is sufficient. It is said that the case of United States v. Martorelli, 12 Ct. Cust. Appls. 327, *76T. D. 40483, is clearly in point. With that statement I disagree. In order to demonstrate the reason for my disagreement I insert a more complete quotation from the opinion in that case. We said:
The question whether the figs of this importation were capable of being marked, stamped, branded, or labeled, without injury, within the meaning of section 304 (a), does not properly arise on this record, and we desire to express no opinion in that respect. • The collector released the figs without marking. Assuming that the collector performed his legal duty, it appears he found the figs not capable of being marked, stamped, branded, or labeled, without injury; otherwise he could not have released them without marking. There was no testimony of any kind offered before the Board of General Appraisers as to whether or not these figs were capable of being marked as specified by section 304 (a). No contention is made here on that point, it being apparently assumed that the figs in question are incapable of being marked, according to the statute.
How this can be understood to be a decision as to the legal effect, if any, of the collector’s action in releasing goods before liquidation without requiring them to be marked, I am unable to understand, in view of the explicit and reiterated statement therein that the question as to whether the goods were capable of being marked was not in issue. Further than this, I have always understood, and now do, that the real question decided in that case was that the failure to mark a package did not justify the assessment of a duty under paragraph 304 (a). To reach that conclusion it was not necessary to consider whether the individual articles were or were not capable of being marked, or the effect, if any, of their release unmarked to the importer. I agree that our views, as expressed in our opinions in Burstein & Sussman v. United States, and Atterbury Bros, against same, cited in the main opinion as to the effect of the release of imported merchandise to an importer without requiring the same to be marked, are somewhat inconsistent. While this case does not, I think, require the settlement of that issue, nevertheless, if to be settled there are certain matters relating thereto which, so far as I know, have never been considered by this court, and the purpose of this dissent is to present the same, because, regardless of what we may have said in the past, it is now our duty, if we consider the matter at all, to come to a correct conclusion. This will, I think, be aided by a brief examination of previous so-called marking statutes.
Section 6 of the Tariff Act of 1890 provided that articles usually or ordinarily marked, and all packages containing such or other imported articles, unless marked in legible English words, “ shall not be admitted to entry.”
Section 5 of the Tariff Act of 1894 in substance contained most of these provisions, but instead of prohibiting entry of articles and packages not marked as required by the section, it provided that they should not be delivered to importer until they had been marked, etc. It also required both articles and packages to be marked so as to indicate the contents thereof before delivery could be made.
*77Section 8 of the Tariff Act of 1897 contained practically identical provisions.
Section 7 of the Tariff Act of 1909 enlarged the preceding enactment, but retained the provision that the merchandise should not be delivered to importer until marked as required by law. In addition, it expressly provided that the Secretary of the Treasury should prescribe the necessary rules and regulations to carry out the provisions of the section.
The Tariff Actof 1913, section4,subdivision F, is like its immediate predecessor.
It will be noticed that section 304 (a) of the Tariff Act of 1922 which is set out in full in the main opinion, shows numerous changes. The provision for correct marking as to quantity, number or measurement is omitted; a 10 per centum duty is assessed upon the appraised value of each article not marked unless exported under customs supervision; the packages are still required to be marked, but no duty is imposed for failure so to do. There is no prohibition of delivery of any particle to the importer before they are marked, if capable thereof, except as contained in the following part thereof:
Any such article held in customs custody shall not be delivered until so marked, stamped, branded, or labeled, and until every such article of the importation which shall ham been released from customs custody not so marked, stamped, branded, or labeled, shall be marked, stamped, branded, or labeled, in accordance with such rules and regulations as the Secretary of the Treasury may prescribe. (Italics mine.)
It is quite obvious from this language that Congress understood and intended that articles capable of being marked within the statute might be released to the importer before they were marked, and that only those which were “held in customs custody” should not be delivered until marked. “Held in customs custody” to my mind clearly means those articles or packages sent to the appraiser’s stores for examination and appraisement, and merchandise otherwise in the actual custody of customs officers.
Assuming the issue supposed to be presented is actually involved in this case, we have this precise state of facts. The collector has liquidated the entry and assessed the 10 per centum ad valorem duty upon the merchandise. His liquidation is, under the general rules applicable to all liquidations, presumed to be correct until the contrary is shown, and the burden of establishing its incorrectness devolves upon importer. In the case at bar what has importer shown that tends to impeach the collector’s classification? As I view it, nothing. The majority opinion proceeds upon the theory that it is impeached by the mere fact that the sponges were delivered to the importer by the collector before liquidation without requiring them to be marked. As already pointed out, there is no proof of such delivery, but if it be assumed, and it also be assumed that such *78delivery took place before liquidation, bow can that alone impeach the liquidation? What distinction can be made between delivery before liquidation of merchandise which ought to have been marked, but was not, and delivery of any other merchandise? The statutory provision is that articles held, in customs custody shall not be delivered until marked, if capable thereof. There is no law or Treasury regulation which requires a collector to examine the merchandise to determine its capability of being marked and decide that question until liquidation. In this case what is there to show that the collector has directed the importer to mark the merchandise as it did mark it, or has accepted such marking as a compliance with the law?
Section 316 (a) must be construed in view of the provisions of sections 486, 504, 515, and 521 of the act, and perhaps others. Without analyzing them in detail, it will be noticed that section 486 implies that upon the entry of any merchandise, none or part of which only is sent to the public stores, the consignees upon giving a bond, as in the section prescribed, may obtain immediate possession of all thereof which is not sent to the public stores.
Section 499 provides that no imported merchandise, required by law or regulations to be inspected, examined, or appraised, shall be delivered from customs custody until it has been examined, etc., except as otherwise provided, and points out what part thereof shall be sent to the public stores or other place for examination and appraisal.
Section 504 provides that the estimated duties shall be paid or deposited at the time of making entry, unless the merchandise is entered for warehouse or transportation under bond, and that later the collector shall ascertain, fix, and liquidate the amount of duties, give notice thereof and collect any increased duties over such as were estimated, as well as refund any excess thereof. The duty provided in section 304 (a) would be obviously a part of the estimated duties. I am unable to see why these provisions are not all applicable to articles required to be marked, and the assessment of the duty for the failure to mark them as required by law. To hold otherwise involves the anomalous result that a presumption arises against the liquidation from the prior delivery of goods without requiring them to be marked, which does not arise in any other kind of case.
Section 515 provides that within 60 days after the filing of a protest the collector shall review his decision and may modify or change the same. Section 521 provides that under certain conditions the collector may reliquidate within one year. Consult Robertson v. Downing, 127 U. S. 607; United States v. Godchaux Sugars (Inc.), 11 Ct. Cust. Appls. 529, T. D. 39678.
If the theory of the main opinion be sound, a reliquidation by the collector, so far as it related to the assessment of the 10 per centum ad *79valorem duty under section 304 (a), would seem to be without effect if, prior thereto, a part or all of an importation had been delivered to the importer without requiring it to be marked, or, ,if not so, to impose upon the Government the burden, at the trial of a protested liquidation, of establishing by proof the correctness thereof.
It is quite clear that one of the important questions to be determined as to many, perhaps most, importations is whether or not the articles and packages, if any, are marked as required by section 304 (a). If that question must be determined before any merchandise is passed over to the importer the business of the customs-houses can not be carried on in an orderly manner. If mere delivery of an article without requiring it to be marked raises a presumption that it is not capable of being marked sufficient to overcome the presumed correctness of a later assessment of the duty imposed by law for not marking, the Government may lose much revenue, and the purpose of the statute be largely defeated.
Suppose, that out of an importation of 100 packages containing duplicate articles all lawfully required to be marked, 10 packages were sent to the appraiser’s stores and 90 delivered to importer without being marked or appraised. Later, at liquidation, and after appraisement, the collector lawfully required the contents of the 10 packages to be marked and assessed the 10 per centum duty on them. Is not he entitled also to assess a like duty on the 90 packages and demand their return for marking the articles therein, and, if return is impossible, proceed on the bond? Can it be held that because the 90 packages were so delivered the Government has lost its 10 per centum ad valorem duty thereon, or that by the prior delivery of the 90 packages unmarked the collector at liquidation is powerless to assess and collect the marking duty on those still in customs custody? Of course it can not be supposed that different rates of duty can lawfully be imposed on identical articles of the same importation and entry. Section 503 of the act requires ad valorem duties to be assesséd on the final appraised value. The collector must know that before he can liquidate.
If the law on this question be as stated in the majority opinion, customs officials should deliver no merchandise to the importer until it has been carefully examined to ascertain whether or not it is capable of being marked under the provisions of the section, and if found capable, require it to be marked and appraised before delivery. The result of this procedure inevitably will be congestion and delay at every port of entry through which passes any considerable amount of imported merchandise, because such examination may involve questions as to the method of manufacture, production, and use, that may require much time. *80I think Congress has clearly indicated a different course of procedure.
As already appears, the marking statute first provided that merchandise required to be marked should not be admitted to entry unless marked. Act of 1890, supra. While that act was in force the regulations of the Treasury Department so provided. Customs Regulations of 1892, art. 311. With the change of the statute providing that markable merchandise should not be delivered to the importer until lawfully marked (Act of 1897, supra) came a corresponding change in the regulations of the Treasury Department. See Customs Regulations of 1899, arts. 452 and 453. The latter provided that the appraising officer should make an examination of all merchandise in his hands for appraisement in order to ascertain whether the same was marked as required by law; that “whenever he shall discover a failure to comply with said requirements, he shall call for the remaining packages on the invoice, and the importer shall be directed to mark the merchandise in accordance with law.” In defatilt of such action by importer the goods were to be sent under general order and treated as unclaimed. See also T. D. 20178, dated October 13, 1898. Similar provisions were embodied in the Customs Regulations of 1908, articles 312 and 313. In this connection see T. D. 29970, T. D. 30029, and T. D. 30041. These regulations were brought forward into articles 450 and 451 of the Customs Regulations of 1915. In article 450 it was provided that any article “found upon examination” not to be properly marked should not be delivered until marked at the importer’s expense. Article 451 provided that the appraiser should report to the collector all articles and packages found by him not properly marked, and that the col- , lector should thereupon notify the importer to redeliver the unexamined packages or to arrange to mark the same and their contents under customs supervision.
After the customs regulations of 1915 had been promulgated, the Secretary of the Treasury (T. D. 37066, dated March 21, 1917) submitted to collectors at various ports a question as to the better procedure in event merchandise was not, when imported, marked to indicate the country of origin. At some ports the practice was “for the examiner to notify the deputy collector at the appraiser’s stores of this fact and to hold in abeyance the appraisement and release of the merchandise.” At others the custom was “for the appraiser at the time of making his appraisement to note on the invoice that the merchandise is not legally marked, and to return the invoice bearing his appraisement, and notation in regard to the marking to the collector.”
It appearing to the Treasury that the latter practice was in force at the majority of ports, and that a change in procedure “would *81delay the appraisement of the merchandise, and in some instances result in a congestion of examination packages in appraiser’s stores” the department directed the adoption of the latter method. Pursuant thereto the result was that the report of the appraiser to the collector, which accompanied his appraisement, was the first notice or knowledge which the collector received as to whether or not the merchandise was marked as required by law. There never has been, so far as I am able to ascertain, any requirement that the collector should make an examination of the merchandise to determine whether or not it w?ls marked until after its condition in that respect was called to his attention by some other customs officer.
This regulation of 1917 was in force when the Tariff Act of 1922 was enacted, and it is presumed to have been within the cognizance of Congress. It is embodied in articles 471 and 472 of the Customs Regulations of 1923.
It is quite evident that every regulation promulgated after the Tariff Act of 1894 by the Secretary of the Treasury, to whom was especially committed (by the Act of 1909) the enforcement of the marking paragraph, contemplated that articles and packages which were by law required to be marked, but were not marked at the time of importation, might be delivered to the importer before they were marked provided, of course, a bond were given to protect the Government. It may be that this was a departure from the strict letter of the law, but, however this may be, it was within the cognizance of Congress when the Tariff Act of 1922 was passed, and, I think, is the basis and the reason for the change in section 304 (a), heretofore pointed out. In other words, Congress recognized that ex necessitate the regulations of the Treasury Department permitting markable merchandise to be delivered to the importer before the question as to whether or not it must be marked should be decided, was the only practicable way to handle such importations. Therefore,- it changed the law to accommodate the conditions, and thereby recognized the necessity and justice of the Treasury regulations touching that matter.
In this connection I call attention to Robertson v. Downing, supra, where, at page 613, it is said:
The regulation of a department of the Government is not of course to control the construction of an act of Congress when its meaning is plain. But when there has been a long acquiescence in a regulation, and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded without the most cogent and persuasive reasons.
As I view it, the majority opinion utterly disregards the provisions in section 304 (a) that articles held in customs custody shall not be delivered until marked, stamped, branded, or labeled as required by law, and until every such article oj the importation which shall have been released without such marking, etc., shall be marked, etc., as the law *82requires. Under the holding of the opinion that a presumption arises from any release of the articles without requhing them to be marked that they are not capable thereof, results that those that have been released before liquidation, without being required to be marked, may not thereafter be required to be marked — a result which the Congress never intended.
If this case may be disposed of on the ground I have first herein discussed, I would concur in a judgment sustaining the court below. If disposed of on the second ground herein considered, I would reverse the judgment below.