DISSENTING OPINION
Cline, Judge:I regret that I am unable to agree with. my associates that this court has no authority to determine whether or not the Presidential proclamation increasing the duty on dried egg-albumen is valid. In the instant case, the validity of the proceedings before the Tariff Commission is questioned because it is claimed that no domestic article and no cost of production of such articles existed which could form a basis of comparison with foreign articles and foreign costs of production.
It is clear from a reading of section 336 of the Tariff Act of 1930 that the existence of a domestic industry is a prerequisite to the operation of the flexible tariff procedure. Changes in rates are authorized by this section only when necessary to equalize the differences in costs of production of like or similar domestic and foreign articles. The cost of production of a domestic article is defined to include the cost of materials and labor and the usual general expenses incurred in the production of the article, the cost of containers and coverings incident to placing the article in condition packed ready for delivery, the transportation costs incident to delivery to the principal market or markets in the United States, and other relevant factors constituting an advantage or disadvantage in competition.
*30When there is no evidence that a domestic article has been produced and sold in commercial quantities, how can transportation costs and other costs incident to delivery to the market or markets for the article be obtained?
Moreover, it is specifically provided that where the Commission finds that costs cannot be equalized by changing the rates of duty, it shall report such ad valorem rates of duty as, when based upon the American selling price of the domestic article, will equalize the differences in costs of production. Certainly, there can be found no differences in costs of production if there is no domestic article; there can be no cost of production as defined by section 336 where there is no domestic indústry; and the American selling price of the domestic article cannot be found in accordance with section 402 (g) where no article is produced in the United States nor offered for sale to all purchasers in the principal market in the United States in the ordinary course of trade and in the usual wholesale quantities. An industry must be a going concern, able and willing to supply a commodity in wholesale quantities to the market. The history of customs litigation is replete with evidences of the judicial acceptance of this basic idea. Here the facts reviewed amply support the report of the Tariff Commission that “No domestic industry existed and no domestic article was produced or sold in the ordinary course of trade in wholesale quantities.”
Congress had the power to place duty on an article in order to create an industry in the United States, but did not do so, and did not delegate such authority, nor is there anything in the flexible tariff provisions indicating that it intended to foster nonexistent domestic industries by means of a Presidential proclamation increasing rates of duty. Should the President assume to act in a case where no domestic industry exists, his action is beyond the scope of the authority delegated to him. The question which then arises is whether this court may pass upon the legality of the Presidential proclamation. I think that question was fully answered by the Court of Customs Appeals when it passed upon the constitutionality of the flexible tariff provisions in the Tariff Act of 1922 in Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, T. D. 42030 (affirmed 276 U. S. 394) at page 369:
But when, in the performance of his duties, under this section, the President proclaims a change of duty, if, in so doing, he acts beyond the law or fails to comply with its express mandates, then we can not doubt that the person aggrieved thereby may find adequate relief in the courts. We need not go beyond the case at bar for an illustration of this. Here the importer has protested against the imposition of additional duties because of the alleged unconstitutionality of the act under which it was imposed, and upon that claim he is entitled to a proper hearing in the courts. Can it be denied that if, in the imposition of *31this rate of duty, the President had proceeded without taking the steps directed by section 315, the importer could have set these facts out in his protest and had an adjudication thereon? To deny this would be to give to the act of the President a peculiar sanctity and inviolability not attaching to the acts of other officials of the Government performing similar fact-finding duties; and this we are neither called upon to do nor justified by the law in doing. We are unable to see why any different rule of law should be applied to the President's finding of facts under section 315 than the one applied to the finding of valuation by an appraiser of merchandise at our ports. In such cases, while the courts have held the finding of valuation made by the appraiser to be conclusive, if he proceeds upon a wrong principle, contrary to law, his acts are subject to judicial control and correction. Badger v. Cusimano, 130 U. S. 39; Robertson v. Frank Bros. Co., 132 U. S. 17 (24); Muser v. Magone, 155 U. S. 240 (247); United States v. Passavant, 169 U. S. 16 (21).
The principle laid down by Congress in section 336 is that rates of duty may be changed by the President only where necessary to equalize costs of production. If a change is proclaimed where it is unnecessary because there is no difference in costs of production or because there is no domestic industry upon which to base a comparison, the President is proceeding upon a wrong principle, and his-acts are subject to judicial control and correction. See also David L. Moss Co., Inc. v. United States, 26 C. C. P. A. 381, C. A. D. 45, at pages 382 to 383, where the court said:
It is true, as pointed out by counsel for the Government, that the Customs-Court is given no direct right of review over action of the Tariff Commission. This does not mean, however, that it is without power to consider the legality of increase of duties resulting from the commission’s action. The court is a-court of law, and it is granted full power to relieve against illegality in the assessment or collection of duties, 19 U. S. C. A. 1515, 1518. If relief may not be had before it against illegal action under the flexible tariff provisions, relief may not be had anywhere; for its jurisdiction in such matters is exclusive. It is the tribunal established by Congress in the provision of a complete system of corrective justice for the administration of the customs laws, and questions involving the validity of official action in the imposition and collection of duties are properly cognizable before it to the exclusion of other courts. [Citing cases.] There can be no question but that courts must exercise the judicial power vested in them to determine the legal validity of administrative action, where the validity of such action is involved in questions properly before them, whether they have been granted the right of review over action of the administrative agency or not. The duty necessarily arises because of their obligation to decide cases before them according to law. [Citing cases.]
I do not think the decision in United States v. George S. Bush & Co., Inc., 310 U. S. 371, repudiates the principles expressed in the above-cited cases. In that case it was held that, since the statute contained no provision concerning the conversion of currency, the President’s method of converting was not subject to judicial review; that section 501 of the Tariff Act of 1930 did not confer jurisdiction to examine the judgment of the President that the rates of duty *32recommended by the Commission were necessary to equalize the differences in foreign and domestic costs of production; that the judgment of the President based upon facts found in accordance with a procedure prescribed by Congress is not subject to review.
In the instant case the statute does require that a domestic article and a domestic industry exist in order that a comparison of costs of production with those of foreign articles may be made. The question here is one of jurisdiction of the President to act at all. Jurisdictional questions are open to judicial review. No such question was involved in the Bush case, supra.
Since a change of rate may not be validly made where no domestic industry exists and since this court may pass upon the legality of the President’s proclamation, I turn now to the status of the dried egg albumen industry in the United States during the period covered by the-report of the Tariff Commission (1928-1930). The only evidence submitted in the instant case is the documentary evidence contained in the incorporated case of T. M. Duche & Sons et al. v. United States, 13 Cust. Ct. 26, C. D. 863, consisting of a copy of the Senate Resolution directing the Tariff Commission to investigate differences in costs of production of dried whole eggs, dried egg yolk, and dried egg albumen; a copy of the public notice of investigation issued by the Commission; a copy of the testimony taken at the hearing held by the Commission; copies of documentary exhibits introduced in the Commission’s investigation; copies of depositions of witnesses not in attendance at the hearing; and the report of the Tariff Commission, No. 25, entitled “Report to the President on Dried Egg Products.”
It was held in David L. Moss Co., Inc. v. United States, supra, that the court may review facts found by the Tariff Commission, not to substitute its judgment for that of the Commission, but in order to determine whether there was substantial evidence before it upon which to base its action. For that purpose only, the report of the Tariff Commission and the evidence submitted to it is examined. These documents indicate that from 1918 until 1927 there was only an occasional, experimental production of dried egg products in this country; that in 1927 two companies dried whole eggs and egg yolks; that in 1929 one company tray-dried about 100,000 pounds of liquid whites, partly to salvage them; that in 1931 another company experimentally produced some dried eggs; and that a few other firms had dried egg albumen experimentally. On page 7 of the report of the Tariff Commission, it is stated:
The commercial production of dried eggs in the United States ceased after 1916. In 1927 deliveries from China were interrupted by civil war. The prices of shell eggs in this country were then quite low, and two domestic plants dried several hundred thousand pounds of whole eggs and yolks. These two plants operated again for a short time in 1930, when domestic shell eggs sold for less than in 1927, *33and again for a brief period in 1931, when prices were still lower. The output of dried eggs at all times was very small as compared with imports and was insignificant as compared with the domestic production of frozen eggs or of shell eggs. There are. however, a large number of milk-drying plants in the United States, a majority of them in the chief egg surplus region, and they can be readily adapted to the drying of eggs. But because of the low prices at which imported egg products have been available, there has been little incentive for these plants to engage in egg drying. [Emphasis supplied.]
The finding that there were in existence milk-drying plants which could be adapted to the drying of eggs, does not alter the fact that the record discloses no evidence of such adaptation.
■ In computing the cost of production of dried egg products, the Tariff Commission reported that it used the actual costs of drying _ obtained from establishments that were engaged in that business, but that in respect to raw materials, it used the weighted average of farm and central market prices of breaking stock eggs delivered at freezing plants.
On this record, I find that there was no domestic dried egg albumen industry in the United States during the years 1928 to 1930 and that the only production of such merchandise was on an experimental basis. In my opinion, therefore, the Presidential proclamation of June 24, 1931, is illegal and void insofar as it purports to increase the rate of duty on dried egg albumen from 18 cents per pound to 27 cents per pound. The protest should be sustained and the merchandise held subject to duty at 18 cents per pound under paragraph 713 of the Tariff Act of 1930.