CONCURRING OPINION
Cole, Judge:I am persuaded in fairness to the majority and myself, as the writer of this memorandum, that I should set forth immediately at this point the exact language of my initial views which have run the gamut and been returned with the majority’s views attached thereto, and refer later to some of the observations in the memorandum of the majority. This is what I had to say:
*177This decision deals with a motion filed by plaintiffs in these proceedings for a review of the rulings by Judge Cline on the admission of evidence, and for issuance of a commission to take testimony. Specifically, the motion seeks “ (1) That the rulings by Judge Cline be reversed, and (2) that a commission addressed to the American Consul at Vancouver, British Columbia, be issued to take the testimony of the witness, A. L. Tester, and (3) that plaintiffs have until April ■ — , 1948, for the filing of direct interrogatories, and defendant have 14 days thereafter for the filing of cross-interrogatories.”
Defendant opposes the motion, and in doing so not only contends that the rulings by Judge Cline were correct, but also presents as its main objection (specifically presented before this court for the first time as far as I have been able to discover) that the motion should be denied because this division would be acting with appellate jurisdiction, thereby challenging the right of the division to entertain the motion at all.
The case, which has been tried at considerable length, has a very voluminous record. Although several protests have been consolidated, for disposition herein, I shall, for the purposes of this discussion, refer only to the initial protest, 120086-K, which is typical.
Because of the effect and consequences of my findings upon a heretofore long and uninterrupted procedure in similar cases, the record will be referred to and discussed at some length.
The issue concerns dogfish-liver oil; classified by the collector under paragraph 34 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 34) as a drug, advanced in condition, with an assessment of duty at 10 per centum ad valorem, and claimed by plaintiffs to be entitled to free entry as a crude drug under paragraph 1669 of the Tariff Act of 1930 (19 U. S. C. § 1201, par. 1669). There was also an assessment of an internal revenue tax at the rate of l}{ cents per pound, but there is no dispute with respect to such imposition.
The subject of the litigation is one assigned to the first division of this court, under rule 41. If this case had been one directed against a decision of the collector of customs at the port of New York, it would have been assigned, immediately upon receipt by the court, to a first division calendar and called regularly thereafter.
Seattle, Wash., however, was the port of entry, and the protest was filed in June 1945, with the collector of customs at that port. In due time, papers pertinent to the cause of action were forwarded by the collector at Seattle, and upon receipt by the court in August 1945, were filed, under instructions by the clerk of this court, with the protest division where they were deposited in a compartment or receptacle labeled “Seattle, Washington,” just as any other protests received from ports other than New York would be assigned to respective files, in accordance with long-standing practice.
*178The statutory structure of this court is interesting to recall at this point. Section 518 of the Tariff Act of 1930 (28 U. S. C. 1946 ed. § 296) directs that the offices of the United States Customs Court shall be at the port of New York and supplies the authority for the existence of the court and its power “to establish from time to time such rules of evidence, practice, and procedure, not inconsistent with law as may be deemed necessary for the conduct of its proceedings.” Said section provides further that “One of the judges of such court, designated for that purpose by the President of the United States, shall act as presiding judge, and in his absence the judge then present who is senior as to the date of his commission shall act as presiding judge; * * *. The presiding judge, or the acting presiding judge in his absence, shall have control of the fiscal affairs and of the clerical force of the court, making all recommendations for appointment, promotions, or otherwise affecting such clerical force; he may at any time before trial, under the rules of the court, assign or reassign any case for hearing or determination, or both, and shall designate a judge or division of three judges and such clerical assistants as may be necessary to 'proceed to any port within the jurisdiction of the United States for the purpose of hearing or of hearing and determining cases assigned for hearing at such port, and shall cause to be prepared and promulgated dockets therefor. * * * The judges of said court shall be divided into three divisions of three judges each for the purpose of hearing and deciding appeals for the review of reappraisements of merchandise, and of hearing and deciding protests against decisions of collectors. A division of three judges or a single judge shall have power to order an analysis of imported merchandise and reports thereon by laboratories or bureaus of the United States. The presiding judge shall assign three judges to each of said divisions and shall designate one of such three judges to preside. The presiding judge of the court shall be competent to sit as a judge of any division or to assign one or two other judges to any of such divisions in the absence or disability of any one or two judges of such division. A majority of the judges of any division shall have full power to hear and decide all cases and questions arising therein or assigned thereto. A division of the court deciding a case or a single judge deciding an appeal for a reappraisement may, upon the motion of either party made within thirty days next after such decision, grant a rehearing or retrial of such case when in the opinion of such division or single judge the ends of justice so require.” [Italics mine.]
Although the 1948 revision of Title 28 of the United States Code was not in effect at the time this case was tried and submitted, it will be found by reference thereto that section 518, supra, has been broken down into different chapters and sections thereof. For instance, the rule-making power of this court is the same as that enjoyed by all *179United States courts, 28 U. S. C. 1948 ed., chapter 131, § 2071. The authority for the presiding (now chief) judge to divide-the court into three divisions of three judges each is found in 28 U. S. C. 1948 ed., chapter 11, § 254, titled, “Divisions; powers and assignments,” with a paragraph, specifically referring to assignments to circuits, reading as follows: “The chief judge may designate a judge or a division and necessary clerical assistants to proceed to any port within the jurisdiction of the United States to hear and determine cases assigned for hearing at such port.” It should be noted that this language does not include the phrase “to hear,” found in section 518, supra. The power of the chief judge to divide the judges of this court into three divisions of three judges each is also embodied in § 254, supra. The authority of a single judge or a division to order an analysis of imported merchandise is now found in 28 U. S. C. 1948 ed., chapter 169, § 2639.
It will be observed from the foregoing that the statute permits the judge or division of three judges, whenever designated by the presiding (now chief) judge, to proceed to any port within the jurisdiction of the United States to hear or hear and determine cases “assigned for hearing at such port” (italics mine), and later, in referring to the three divisions of three judges each, into which the court is divided for certain purposes, it is specifically stated that “A majority of the judges of any division shall have full power to hear and decide all cases and questions * * * assigned thereto.”
The instant case was definitely assigned to the docket at one of the ports specifically listed in the authorization issued by the presiding (now chief) judge, designating a single judge to proceed thereto for the purpose of presiding over the trials and, as part of such designation, to hear or hear and determine all cases before the court at such ports.
It is important to bear in mind from the foregoing that the act of Congress creating this court delegates, in one section, the power to the presiding (now chief) judge to designate individual judges or a division of three judges to hear or hear and determine cases assigned for hearing at any port within the jurisdiction of the United States, and later — not preceding said authority, but following it — in the same section, is the direction that the court be divided into three divisions for the purpose of hearing and deciding litigation before the court, including protest cases.
Undoubtedly Congress intended by the language hereinabove quoted that this court of nine j udges shall be divided into three divisions of three judges each for the expeditious handling of litigation before it, and that such divisions would be seated permanently at the principal office of the court, which is named in the statute as New York. At the same time, Congress provided authority to send, *180upon order of the presiding judge, to any port within the jurisdiction of the United- States where conditions would justify such a move, a division of the court, or in lieu thereof a single judge delegated for that purpose. Indeed, the practice of a division being sent on circuit by the presiding (now chief) judge to actually hear cases at ports other than New York has been most rare; in fact, during approximately ■6 years the writer of this opinion has been a member of the court, not a single case has been heard at any port within the jurisdiction of the United States, other than New York, except by a single judge, as distinguished from a division of three.
As I view it, it is rather unfortunate that the practice prevailing when the Board of General Appraisers permitting the individual members of the board to preside over the trials of cases and later have the record, taken before the individual member on circuit, referred to one of the boards of three, has continued as a practice of this court. Such practice might be condoned when individuals, in the category of commissioners or notaries public, travel throughout the country to accommodate litigants and- witnesses and corral great volumes of testimony for use in subsequent recommendations to an appropriate body concerned with some particular inquiry. But to impose such procedure — as has been the case since the transformation of the Board of General Appraisers to the United States Customs Court, a court of record — permits a trial judge of the United States judiciary to preside over the trial of a case or cases, in which, as in the instant matter, many witnesses are heard and observed, and upon the conclusion and final submission thereof for said trial judge or judges to have nothing whatever to do with the determination of such cases, because it is claimed that a division of the court, that has never seen a single witness or heard any of the testimony, except possibly through a casual opportunity presented to meet the convenience of witnesses and attorneys who happened to be in the city of New York, has, under procedure presently in effect, sole jurisdiction to determine the same. There is not the slightest opportunity, from such procedure, for the division disposing of the case, as has been the practice in the past, to comment upon the demeanor or the impression formed by the trial judge-of such witnesses, a consideration most important for a trial court, composed of a single or several judges, such as the division in these matters, to have before it.
The case in question remained in the files of this court between August 1945, when the papers were formally received in New York and entered into official records, and February 1946, when it was first called on a Seattle docket. In other words, when the court received the case in August 1945, it was then arbitrarily recognized as litigation assignable to a Seattle docket, not then in existence, but to' be prepared and promulgated later, when the presiding judge would *181so decide in a “Schedule of Hearings at Ports Other than New York,” made up late in the year 1945, for the ensuing calendar year.
Following is a table showing the dates of the several hearings had in this case, the ports at which they were held, and the judge or division before whom the trials were conducted:
Date Poet Court
Feb. 4, 1946 Seattle_ Judge Keefe
Feb. 1946 San Francisco. Keefe
Apr. 11, 1946 New York_ First Division
Apr. 12, 1946 New York_ First Division
Apr. 19, 1946 New York_ First Division
July 9, 1946 Los Angeles_ Judge Ekwall
Julv 18, 1946 San Francisco-Judge Ekwall
29, 1946 Seattle_ Judge Ekwall
July 31, 1946 Seattle_ Judge Ekwall
Aug. 1, 1946 Seattle_ Judge Ekwall
Oet. 9, 1946 New York_ First Division
Oct. 1946 New York_ First Division
Oct. 11, 1946 New York_ First Division
Feb. 18, 1947 Seattle_ Judge Mollison
Feb. 19, 1947 Seattle_ Judge Mollison
Feb. 20, 1947 Seattle_ Judge Mollison
Feb. 21, 1947 Seattle_ Judge Mollison
Feb. 24, 1947 Portland, Oreg.. Judge Mollison
Feb. 25, 1947 Portland, Oreg._ Judge Mollison
Mar. 12, 1947 Los Angeles_ Judge Mollison
June 4, 1947 New York_ First Division
June 5, 1947 New York_ First Division
June 1947 New York_ First Division
June 12, 1947 New York_ First Division
July 18, 1947 Boston_ Judge Lawrence
Aug. 22, 1947 Los Angeles_ Judge Cline
Pept. 2, 1947 San Francisco_ Judge Cline
Sept. 3, 1947 San Francisco... Judge Cline
Sept. 16, 1947 Seattle_ Judge Cline
Sept. 17, 1947 Seattle_ Judge Cline
18, 1947 Seattle_ Judge Cline
Sept. 19, 1947 Seattle_ Judge Cline
Six individual judges have presided at different times in the several trials of this case. A very small part of the record was taken before a division of three judges, when some of the witnesses were heard in New York, by virtue of an order issued by an individual judge on circuit, directing that the case he returned to New York for that purpose. Four of the individual judges before whom a very considerable part of this record was made are not members of the division to whom the present motion is addressed; in fact, one of said judges is no longer a member of the court.
At all of the above-enumerated trials where a single judge presided, such appearance at the particular port designated was pursuant to an authorization from the presiding (now chief) judge of this court, issued under statutory authority, section 518, supra, “for the pur*182pose of hearing or of hearing and determining cases assigned for hearing at such port.” In the two instances, showing hearing before the first division at New York, the case had been transferred here for further testimony.
When the case was finally submitted before Judge Cline at Seattle, on September 19, 1947, counsel for both parties, following another king-standing practice in this court, requested an opportunity to file briefs after transcription of the record had been filed. Accordingly, plaintiffs were given 90 days after transcription of the record in which to file a brief, and defendant was allowed 90 days thereafter to reply. The record consists of 2,548 pages of testimony and 59 documentary exhibits. It is replete with rulings by the several judges hereinabove named, either admitting or excluding evidence, with exceptions taken by both parties.
The immediate question before us pertains to rulings by Judge Cline at the final hearing of the case in Seattle, sustaining objections made by Government counsel to questions propounded on direct examination to plaintiffs’ witness, A. L. Tester, conceded to be a duly qualified statistician. The court’s rulings, as well as plaintiffs’ counsel’s offers of proof, are not only set forth in the record, but are also embodied in the motion under consideration.
I shall dispose of the first two requests in plaintiffs’ motion, swpra, in order. The third answers itself, depending upon my disposition of the number 2 request. The first question raised is jurisdictional, i. e., whether this division can pass upon the rulings of an individual judge, prior to the decision of the entire case on its merits, assuming such a decision is to be made by the division in conformity with heretofore existing practice, of which this opinion will hereinafter discuss and criticize, if not, by indirection, dispose.
This court is part of the United States judiciary. It is a court of record and the position of each judge, and his decisions in the trials of cases properly heard by him are reviewable only to the extent and in the manner prescribed, insofar as this court is concerned, in the law creating it, and other pertinent laws applicable thereto. If this division has any right to review the rulings of any of the individual judges, who presided on circuit over the trial of this long and highly important case, then such right must be found in the law controlling the court’s existence. I find no such authority in the law, either specifically or by inference.
There is no dispute in this case, and I doubt if any could be presented, as to the action of the presiding judge in preparing and promulgating the numerous dockets upon which this litigation appeared from time to time. Nor has any question been raised as to the authority of the presiding judge to designate, as was done, the several individual judges to conduct the various phases of the issues presented *183at different ports outside New York. The jurisdiction of the first division to hold the hearings in New York is not disputed. Likewise, if the presiding judge should designate an individual judge to preside over a protest case at the port of New York such an assignment would be entirely legal just as much so as at any other port. Such practice, however, has never been invoked for the reason, I presume, that the divisions are conveniently available in New York. The fact that the divisions are not also available where other trials of protest cases are held is no justification for the procedure outlined.
The course followed in initiating litigation before the United States Customs Court and the Board of General Appraisers (predecessor to this court) is well known. The procedure employed in filing, docketing, hearing, and final submission of the protest under consideration, as hereinabove outlined, applies to all classification cases arising at ports outside New York. If such litigation is initiated in New York, however, and is tried and submitted for decision in New York, where the principal office of the court is, by law, directed to he, then the entire proceedings are held before a three-judge division, and at no time is a single judge permitted to conduct any part of such litigation, without specific agreement between the parties that all of the judges of the appropriate division shall participate in the decision of the case.
The somewhat inconsistent procedure, disposing of classification litigation, may be further emphasized this way. The statute, section 518, supra, is strictly construed in all litigation concerning protests against decisions of the collector of customs at New York, when such cases are entirely heard and submitted at this port. Every such protest is assigned according to subject matter, rule 41 of this court, to a division of three judges who hear and decide the case. On the other hand, protest cases arising at ports outside New York are placed on calendars at such ports designated by the presiding judge who assigns a judge thereto' to “ call the calendars on the dates set for such hearings and shall dispose of the same in such manner as in his judgment he deems proper.” (Rule 8 of this court.) It is not unusual for several individual judges, as developed in this case, to take testimony at various cities throughout the United States and never participate in the decision because, as a matter of long-standing practice, it is claimed they have no jurisdiction over subject matter, not through limitation imposed under the organic law but by arbitrary assignment under rule of court.
This unique procedure was referred to in Rapken & Co., Ltd. v. United States, 25 C. C. P. A. 268, T. D. 49393, as follows:
It may be said that the testimony in the case was taken before a single judge sitting in California on circuit. It was taken at different sessions, Cline, J., presiding at the first session and Evans, J., at the second. Neither of these judges was a member of the First Division which finally passed upon the case. We have *184examined the record with care. In many instances objections were sustained and, upon the whole, we do not feel that the admission of any of the testimony which was admitted proved prejudicial to appellant’s case and constituted reversible error.
In this somewhat peculiar jurisdiction it not infrequently happens that testimony is taken before a single judge on circuit who does not participate in the final determination of the case. Such judge may, not improperly in our opinion, admit testimony, even though it borders upon the doubtful, and leave it to the full division to winnow the wheat from the chaff, and so long as it does not appear that illegitimate evidence influenced the decision no harm results and no reversible error is committed. We may add that, upon the whole, we regard the rulings of the single judges before whom the evidence in this case was taken as being quite fair. They obviously sought to keep it within legitimate bounds.
It will be noted from the cited case that the appellate court offered no comment concerning the jurisdictional question discussed herein, with respect to the right of a division to review the action of an individual judge on circuit. Such question was not assigned as error nor discussed in.the briefs.
In addition to the cited case, which is the only pertinent discussion I have been able to find by the Court of Customs and Patent Appeals on the subject presented herein, there have been cases in which a division of this court has disturbed the ruling of a single judge on circuit, but in none of those cases did the parties raise the question of the right for the division to do so.
In Federated Metals Corporation v. United States, 73 Treas. Dec. 574, T. D. 49493 (decided March 28, 1938), the single judge on circuit excluded certain publications offered by plaintiff as evidence to show commercial meaning or understanding of tariff terms. When the case was taken up for decision by the second division, the ruling of the trial judge was reversed and the trade papers were admitted in evidence. It might be added that the same judge, who heard the case on circuit, wrote the opinion for the division.
In Wilbur-Ellis Co. v. United States, 73 Treas. Dec. 1008, T. D. 49626, a motion to incorporate the record in an earlier case was granted by the single judge who heard the case on circuit, but when it came before the division for decision, the action of the trial judge was reversed.* The division’s ruling, excluding the record sought to be incorporated, was affirmed, Wilbur-Ellis Co. v. United States, 26 C. C. P. A. 403, C. A. D. 47 (decided March 6, 1939), but no question was raised concerning the division’s right to review and hence no discussion thereon was offered.
Schillito Co. v. United States, 73 Treas. Dec. 1080, Abstract 37499 (decided January 6, 1938), and Paramount Pictures, Inc. v. United States, 20 Cust. Ct. 144, C. D. 1098 (decided March 25, 1948), also ■ embody rulings by the divisions, reversing actions by trial judges on circuit, relating to motions for incorporation of records in previously tried cases.
*185There are several decisions where a division of the court has reviewed the ruling of a single judge on circuit with respect to motions to amend pleadings. Such review, however, is provided for in rule 9 of this court, which has been accepted as authority for the division to so act.
The importance of procedure requiring a trial judge to decide and conclude litigation over which he has presided was very forcefully propounded in United States v. Nugent, 100 F. 2d 215, which was an action brought under the Tucker Act, 28 U. S. C. §41 (20), for alleged appropriation by the United States of private property. Evidence was heard in October 1934, before a district judge, who resigned from office in July 1935, without disposing of the case. Another district judge, duly designated, made findings of fact and conclusions of law from stenographer’s minutes of the testimony taken before the trial judge, and entered judgment thereon without hearing the witnesses. In holding such proceedings to be fatally defective, the court said :
The question whether such a case can properly be tried by two different judges, one hearing the testimony and the other making ultimate findings and conclusions, is of extreme importance, as the findings of the trial court are conclusive and have the effect of a jury verdict unless manifest error exists. * * * This rule is based largely upon the superior opportunity which the trier of the facts has to ascertain the truth, due to personal observation of the witnesses. * * * The trial judge has the right and duty to observe the bearing and demeanor of the witnesses, and where the evidence is conflicting, he may take these things-into account. Such personal observations cannot be transferred to the printed page, and yet the judge may, and often must, give them weight in making his decision. In the present instance it is difficult to see how the judge who entered the findings had any proper opportunity to decide any question affected by the credibility of the witnesses. While the statute does not in terms require that the same judge shall hear the evidence and make the findings, since by universal practice and tradition these findings are based upon personal observation of the witnesses, and are conclusive upon the reviewing court, the statute impliedly requires that the same judge who hears the case shall make the findings and conclusions, and this requirement is mandatory.
The foregoing is certainly applicable to the situation discussed herein. There is absolutely nothing, either directly or by implication, in the law governing the United States Customs Court which requires a judge, other than the one hearing the evidence, to make findings therefrom. Unless and until Congress, by statute, so directs, in prescribing the procedure to be followed by members of a court created by it, any rule of court attempting to substitute a contrary procedure governing such court, would be clearly ultra vires.
Whatever may be said concerning the consistent practice followed in this court of a division reviewing actions of individual judges on circuit, or however long such procedure may have been in existence, or how difficult it might be to revamp the practice which the court has followed in the past, there is nothing in the language of section 518, *186swpra, or in any other statute, nor is there any decision, that has either been called to my attention or that I have, by careful study, been able to locate, vesting in this division the right to entertain in a case submitted for decision before a court on circuit, a motion, like the one before me, to review rulings of individual judges on circuit before whom the witnesses were heard. This division is not endowed with appellate jurisdiction to review, either affirm or reverse, an action taken or a ruling made by a court on circuit. If this division has any jurisdiction whatsoever, it is solely for the purpose of deciding the case on its merits, on the record as presented and in accordance with the law applicable thereto. This does not mean I am conceding the division has such jurisdiction under the law, because the doubt that such exists deserves thorough argument and expression of opinion at the proper time.
To follow such practice and accept jurisdiction in this matter would be tantamount to recognizing divisions of this court as sole trial judges in protest cases, and to strip individual judges on circuit of the power and right they possess as United States judges to try cases having been assigned for that purpose by the presiding (now chief) judge under clear and specific authority therefor as found in the statute, section 518, supra. It would mean simply that such individual'judges on circuit would take testimony for the future consideration of their colleagues, as divisions, awaiting a transcribed record in New York where they happen to be permanently located. Such practice, if allowed, could be compared to the taking of testimony by commissioners or examiners, clothed with no authority to make final decisions in such cases because the record therein would be transcribed and later delivered to the appropriate commission or board for ultimate disposition. Should this be done, it would violate the clear intent of Congress, giving to litigants before this court, the benefit of United States judges, hearing apd determining their cases.
It is to be presumed when the presiding (now chief) judge of this court decides to designate a single judge to hear and determine litigation throughout the country that he finds no necessity for a division to be so assigned. If, however, the importance of a docket at some port other than New York suggests the advisability of a division being being assigned thereto, and it is later found to be inconvenient, because of congested dockets in New York, for three judges to preside at a so-called out-of-town assignment, then counsel could be required to agree that all members of the division be permitted to participate in the decisions of the cases, just as has happened on numerous occasions in New York when a member of a division has been absent from the actual trial of a case.
A look at other provisions of the statute presents immediate and uncontrovertible conclusions. For instance, section 501 of the *187Tariff Act of 1930, 19 U. S. C. § 1501 (now 28 U. S. C. 1948 ed., chapter 169, § 2631), deals with appeals for reappraisement as distinguished from litigation relating to classification of merchandise. The law, section 501, sufra, provides for the assignment of such cases to a single judge, and after decision by the single judge, the right exists to apply for a review of such decision by a division of this court (now 28 U. S. C. 1948 ed., chapter 169, § 2636). If it had been the intention of Congress that the same right of review was to be applicable in classification cases, Congress would have said so. Even if such right had been definitely created in the statute, I doubt whether a case, properly assigned to a member of the United States judiciary to hear or hear and determine the litigation, could he acquired by another group of judges at the conclusion of the hearing and after submission, without the trial judge even participating in the final decision, and dispose of such litigation. There is so much sound reasoning and basic philosophy associated with the development of jurisprudence of United States courts in this country found in such practice, that it makes it easy for me, although it does challenge a long-continued practice before this court, not to permit its continuance.
If this division has jurisdiction ultimately to decide this case and in doing so is forbidden to review or reverse rulings of any of the trial judges sitting on circuit during the progress of this case, then, upon review by the Court of Customs and Patent Appeals, there might be a reversal of such decision by a division because of error committed by a single judge on circuit. That such practice is intended should be free from all doubt, and not accepted without legal intentment therefor.
The word “determine,” as defined in Funk & Wagnalls New Standard Dictionary, means “to reach a definite purpose concerning; form the intention of doing or not doing; resolve; decide”; and also “to terminate; finish; bring to an end; * * * to put an end to; end,” as illustrated, “That he and Caesar might Determine this great war in single fight! Shakespeare Antony and Cleopatra act iv, sc. 4.”
The word “decide” is defined in the same dictionary as follows: “To determine the issue or conclusion of; * * * to end by a decision or judgment; * * * as, to decide a dispute; decide who is right.”
Section 501, supra (now 28 U. S. C. 1948 ed., chapter 169, § 2631), says that a judge of the United States Customs Court shall “after affording the parties an opportunity to be heard, determine the value of the merchandise.” [Italics mine.] Sections 514 and 515 of the Tariff Act of 1930 (19 U. S. C. § 1514, 1515) relate to protests against collectors' decisions and, after setting forth fully the manner in which such litigation shall proceed, provides “If the collector shall, upon such review, affirm his original decision, or if a protest shall be filed against *188his modification of any decision, and, in the case of merchandise entered for consumption, if all duties and charges shall be paid, then the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected therewith, to the United States Customs Court for due assignment and determination, as provided by law. Such determination shall be final and conclusive upon all persons, and the papers transmitted shall be returned, with the decision and judgment order thereon, to the collector, who shall take action accordingly, except in cases in which an appeal shall be filed in the United States Court of Customs and Patent Appeals within the time and in the manner provided by law.” [Italics mine.] Section 516 of the Tariff Act of 1930 (19 U. S. C. § 1516) is entitled “appeal or protest by AMERICAN producers” and is divided into subdivisions (a), (b), (c), and (d). Subdivision (c) is entitled “hearing and determination” and provides for transmission of all necessary papers and exhibits to the United States Customs Court for due assignment and determination of the proper value or of the proper classification and rate of duty.
During the able oral argument of this case by counsel, it was suggested that Congress in creating this court is presumed to have been familiar with the procedure followed by its predecessor, the Board of General Appraisers, and intended such procedure to continue because all the provisions governing this court are practically identical with the law that governed its predecessor, and that to do otherwise would defeat the workability of the existing law. It was further suggested that everything possible should be done to construe the statute governing this court in a way that will assure its workability. I am not at all alarmed' should the present practice, hereinabove outlined, be discarded, that something just as expedient, if not more so, could not be devised.
Should the presiding (now chief) judge find that litigation before this court at ports other than New York is important enough to deserve the assignment of a division of the court to hear and determine the same, just as has been, and is now, taken for granted in practically all litigation of a certain type at the port of New York, regardless of its magnitude, it certainly cannot be said that the presiding (now chief) judge should not so designate a division of three judges, simply because of the effect such assignment might have on the dockets at New York. Litigants requesting and desiring a division to hear and determine their cases should be treated alike, and without the discrimination existing as the dockets are now handled.
When, however, the presiding (now chief) judge directs a single judge to preside over dockets at ports other than New York, such single judge and the litigants before him should recognize in advance the fact, which seems to me to be free from any serious doubt under *189existing law, that it is the responsibility of such single judge, when cases are submitted before him, to determine the same.
The fact that this court, immediately upon its creation, saw fit to adopt almost in toto the procedure of its predecessor, which was not a court of record, is no excuse whatsoever, even at this late hour, to now continue it under existing statute. It is fortunate, as I see it, that opportunity has at last been presented to steer the procedure of the court in the direction the statute clearly intends and not in a way that seems more appropriate to present day administrative inquiries, as distinguished from the trials of cases before a United States court.
In this proceeding the presiding (now chief) judge, as hereinbefore stated, designated the individual judges who heard the case on circuit, including Judge Cline before whom the litigation was finally submitted, to proceed to ports outside New York “for the purpose of hearing or hearing and determining cases assigned for hearing at such port.” Judge Cline concluded this case, and I feel it is far beyond the jurisdiction of this division to consider rulings made by her herein.
A mere glance at the voluminous record, the realization that a study of the entire case should be made to intelligently pass upon rulings made by any of the trial judges, and how such rulings might affect the entire conduct of the various trials by the several judges, present strong reasons for the position I take herein.
The second part of the motion, addressed to this division, is that a commission be issued to take certain testimony. What, if anything, the single judge before whom the case was finally submitted, would care to do with such request, I do not know, but I am of the opinion that the division is without any jurisdiction whatsoever to issue such commission.
I will sign an order denying plaintiffs’ motion for reasons herein expressed. (Order on initial memorandum followed.)
The following additional observations are prompted from a reading of the majority opinion. At the outset, the majority, in referring to the statutory construction of the United States Customs Court and its application to protest cases found therein, cites United States v. Park & Tilford, 4 Ct. Cust. Appls. 293, T. D. 33514, as authority for the procedure followed in this case. It will be noted that the decision therein was handed down in 1913, when the Board of General Appraisers, and not the United States Customs Court, was functioning. I cannot subscribe to acceptance by this court as precedents for its every action the interpretations of decisions and other actions taken by the Board of General Appraisers prior to 1922, because there is a very considerable difference. As is stated in 25 C. J. S., § 178 (Customs Duties):
Formerly the proceeding (referring to the proceeding before the Board of General Appraisers) was inquisitorial and the reviewing body did not act as a *190judicial tribunal, as stated in § 179 infra; since the enactment of the Tariff Act of 1922 the reviewing body (meaning, of course, the United States Customs Court) acts judicially in determining such appeal. [Parentheses mine.]
It should be borne in mind, also, that the Park & Tilford case, supra, involving merchandise entered at the port of New York, was, upon its receipt, immediately assigned to Board 1, before whom the dispute was submitted upon the papers in the case. The decision, however, was rendered by Board 3, and that brought up the jurisdictional question of said Board 3 to decide the case. The court said:
* * * the record here shows the hearing of a case by Board 1, to whom it has been lawfully committed for hearing and determination and whose jurisdiction is not challenged, while the decision complained of has been rendered by another board, having no appellate jurisdiction of Board 1, -with no showing whatever of record by what right or authority such other board assumed to decide the case or claims jurisdiction thereof and whose jurisdiction is directly challenged.
Under this state of facts and in view of the principles hereinbefore set forth it is apparent that Board 3 had no jurisdiction to determine this case and that its judgment therein is therefore wholly void. The case is still pending before Board 1 for determination and decision.
The majority accepts rule 41 of this court as mandatorily determining the jurisdiction of the several divisions of the court for litigation as it develops. In other words,'the majority states that “* * * under the automatic operation of rule 41 of this court, it must follow that the jurisdiction of the division over a classification case attaches immediately upon the expiration of the statutory time within which the collector has authority to act * * *, subject, of course, to the power of the chief judge to assign or reassign any such case before trial and under the rules of the court to another division for hearing, determination, or both.”
It would have made different reading if the majority had continued and stated that the assignment of cases in the ordinary course is subject also to the assignment of such cases to an individual judge on circuit. The statute confers authority for the chief judge, as aforesaid, to so assign a single judge or a division, and when that is done jurisdiction with the single judge or the division is established and no rule of court can disturb it.
I insert another quotation from the majority:
* * * The only manner in which the jurisdiction of the first division over the case could have been terminated or transferred would have been by reassignment of the case by the chief judge before trial under the power granted in 28 U. S. C. (1948 revision) § 253, or its predecessor statute, and that was never done.
If this was not done, and I think it was, what possible meaning can be attached to the order of the presiding (now chief) judge, issued under authority of the statute, directing Judge Cline, and prior thereto other judges, to proceed to Seattle and other cities to hear and determine cases on such dockets. I know of no reason why a single *191judge on circuit cannot bear, conclude, and decide such cases. I am inclined to the view if sucb requirement is imposed it will tend to considerably expedite the trial of cases before the court, and relieve the tendency, prevailing at present, of a single judge on circuit to grant continuances quite liberally because of the past practice encouraged by the knowledge that eventually in most cases he would have nothing whatever to do with the actual decision in the case.
Thomas Prosser & Son v. United States, 158 Fed. 971 (1907), and United States v. Saunders et al., 5 Ct. Cust. Appls. 270, T. D. 34446 (1914), are cited as authority for the statement that “jurisdiction of classification cases resides in the Division and not in the Court as a whole.” Both of these cases, as the dates indicate, were long before the creation of the United States Customs Court. It is, nevertheless, interesting to quote from the opinion in the Saunders et al. case, supra, which involved litigation initiated at Buffalo, N. Y.:
* * * The protest came on for hearing before Board 3 on June 18, 1913, at which time, the Government and the importers being represented by counsel, a trial of the issues presented by the protest was had and the matter submitted for decision. After the trial and submission of the case, for some reason not set out in the record, the whole proceeding was transferred to Board 1, which, apparently without a trial and without giving either of the parties any opportunity to be heard, rendered a decision sustaining the protests.
From the decision of Board 1, the Government appealed, contending that Board 1 was without jurisdiction and therefore the decision was invalid and void. That contention was sustained.
The position taken by Judge Smith in the Saunders case, supra, is revealed in the following language in his decision:
* * * If, therefore, the case at bar originally arose in Board 3, or was assigned thereto, that board had jurisdiction not only to hear but also to determine and decide the matter, and that necessarily implied that none of the other boards was vested with authority either to try or decide the issues which the protests presented. It is true that by virtue of the very same section the president of the board of nine general appraisers may at any time before trial, under the rules of the board of nine general appraisers, assign or reassign any case for hearing, determination, or both, but neither that provision nor any other that we can find contemplates that the trial of a case may be had by one board and that it may be then reassigned or transferred to another for decision. [Italics quoted.]
I expect Judge Smith would say today under the practice in effect in this court that a single judge having been assigned — and unquestionably in response to legal authority — to hear and determine a case, and as a result thereof, has heard the witnesses, presided over a considerable portion, if not all, of the trial, and had the case submitted to him, that it may not then be “reassigned or transferred to another,” to use Judge Smith’s language, whether one judge or a division of three, for decision, but must be decided by the said single judge. *192Judge Smith aptly said “The right of a judicial tribunal to take cognizance of a proceeding depends on whether it has jurisdiction of the subject matter and the parties, but its authority to adjudicate the rights of litigants does not accrue until an opportunity has been afforded to the parties not only to appear, but to appear and be heard,” and because there was no hearing in the protests covered by the Saunders case, supra, before Board 1, the determination by said board was in excess of its authority.
The majority cites volume 17, Corpus Juris (published in 1919), page 608, to support the present practice in this court in the disposition of protest cases. It seems fair to say that such citation is merely a statement of the practice before the Board of General Appraisers, taken from decisions found in the majority memorandum.
At this point, I would like my readers to turn back and read that part of the majority memorandum, beginning with the sentence:
When the protests were first received by the court in August 1945 the jurisdiction of the 'first division of the court attached immediately * * * — a practice which is necessarily implied by the rules of the court. (Rules 8, 9, 17, 40, and 41.)
This statement gives a clear idea of the extent to which the majority is willing to take this court. It means that a single judge is not sent on circuit to determine anything — certainly not to render a final decision when the case is submitted to him — as I contend is his duty under the law. If this practice is continued as an accepted procedure for single judges of this court, then we may hear the question asked, “When is a United States judge not a United States judge?,” and answered, “When he is a single United States Customs Court judge on circuit..”
It is undoubtedly correct that a few decisions by this court have been handed down embodying views opposite to those I express herein. Paramount Pictures, Inc. v. United States, 20 Cust. Ct. 144, C. D. 1098, cited by the majority, is one in which I participated. In that case, however, it should be noted that the single judge on circuit, actually in Los Angeles, heard the case and had it submitted before him. Later, in compliance with the present practice of this court, because of the subject involved, the case was referred to the first division for decision, of which division the said trial judge on circuit was a member, and accordingly participated in the division’s opinion and judgment. In other words, the reversal by the division of a ruling made by the single judge on circuit was a reversal of his own ruling by the said single judge, himself, as a member of the division deciding the case. If such procedure were to be followed in all protest cases tried at ports other than New York, and the parties were required to waive the presence of a full division of three at the trial with knowledge that the judge actually conducting the trial of the *193case and before whom it was submitted was of the division ultimately to decide the case, that would be in accordance with the practice existing in the trial of protest cases in the city of New York and there would be no complaint about it.
The majority has stated for the first time, so far as I have been able to find in any judicial interpretation covering this court, that—
* * * the single judge on circuit at outports would merely “hear” protest cases and the jurisdiction granted the single judge on circuit never at any time included the right to decide and determine protest cases and render final judgment therein, so that the single judge before whom these cases were submitted was not of concurrent jurisdiction with the first division. Under the statutory scheme and arrangement for the distribution of jurisdictional powers as between the division and the single judge on circuit, the latter had the power and judicial authority to conduct the hearings and to make necessary rulings for the proper conduct of the hearings (rules 8 and 9), but said jurisdictional powers of the single judge on circuit never included the authority to hear and decide the cases, including the authority to pass upon every question of law and fact necessary for a proper determination of the cases, i. e., the rendition of final judgment therein. United States v. Saunders, supra; United States v. Kurtz, Stuböeck & Co., supra. The ratification or reversal by this division of any rulings of the single judge before whom the protests were submitted would be merely the exercise of judicial discretion by the real and actual trier of the case and would in legal contemplation and effect be a “review” of its own acts — rulings which had been made for and on behalf of the division by the single judge. This division, retaining at all times exclusive jurisdiction to “hear and determine” the protests, also retains until its final judgment the sole right to pass upon every question of law and fact necessary to a proper determination of the eases. United States v. Saunders, supra; United States v. Kurtz, Stuböeck & Co., supra.
I have been unable to find, anywhere, any authority for the foregoing broad statement. It is the first time any court, certainly the United States Customs Court, has attempted to say that Congress contemplated, when it said that a single judge on circuit could be designated to hear and determine litigation, that it was intended to restrict such single judge to a mere hearing of such cases and have nothing to do with the decision thereof. How it can be said that the division, as in the instant case, would be exercising its judicial discretion as the real and actual trier of this case, when the great majority of hearings were before single judges on circuit, and the case actually submitted before such a single judge, is something I cannot follow.
Let me quote further from the majority memorandum:
* * * By the provisions of 28 U. S. C. (1948 revision) sec. 254, and its predecessor, 28 U. S. C. 1946 ed. sec. 296, the chief judge was empowered to — ■
* * * designate a judge or a division * * * to proceed to any port within the jurisdiction of the United States * * *.
By the express terms of the foregoing statutory provisions, the former presiding and now chief judge was given a power of discretion to designate either a single judge or a division of three judges to proceed to any port. The then presiding judge having exercised the discretion to send a single judge to the port of *194Seattle, such discretion may not be reviewed or challenged in this or in any other court, there being no showing that the designation of the single judge was not in conformity with law. Marlin v. Mott, 12 Wheat. 19, 25 U. S. 32, 6 L. ed. 537.
Should the majority assume that the chief judge had designated a division instead of a single judge, as it concedes he could have done, then I ask, would the division so sent to ports, other than New York, be merely acting for the first division, or would the division on circuit be required to render a decision? There could be but one answer. If, clearly, the right of the special division on circuit is recognized then certainly the single judge on circuit, when serving in response to an order by the chief judge, is entitled to equal dignity and respect.
Dohany v. Rogers, 281 U. S. 362, 369, is cited by the majority as authority for this statement:
* * * Congress is empowered to classify litigation and authorize, or permit under a grant of discretionary power, a single-judge designation or a designation of a division of three judges in the discretion of the chief judge.
This case was an appeal from the District Court of the United States for the Eastern District of Michigan and dealt with condemnation proceedings. It has no application whatsoever to the statement it is offered as supporting.
“Customs Valuation in the United States,” a recent publication by R. Elberton Smith, has been cited at length with apparent approval, by the majority. It seems to be merely a restatement of much adjudication of the Board of General Appraisers’ regime, and some current comments considered appropriate thereto. Not meaning in any way to criticize the publication because it is interesting reading,. as far as it goes, I know of no reason to accept it as an authority from which I am willing to quote in this discussion.
The majority accepts the present situation in this language:
* * * In order to carry out the statutory plan and intent to secure more important advantages and benefits for the importers and general public, such as three-judge-decision in protest cases in lieu of the abolished jury trial, the relatively less important benefits and advantages of divisions seeing and observing the witnesses and the demeanor thereof had to be dispensed with in order to realize and secure larger and vastly more important and vital statutory objectives.
This is tantamount to saying that seeing and observing witnesses contributing to the record in important litigation is of no consequence to the final decision, and the impressions or opinions of the trial judge over such deliberations who had an opportunity to see and observe such witnesses is not to be of any consideration whatsoever. With this point of view I take violent issue. It is much to be preferred— even if the past practice before this court should be considerably changed — that the divisions or single judges, finally deciding litigation before this court, shall have the benefit of the views of individuals, or in conceivable cases other divisions before whom the record *195in the case is made. Something akin to the practice before the Court of Claims and contemplated in pending legislation to govern the new Tax Court is what I have in mind, or some other procedure which can be easily formulated.
The next reference by the majority discloses a citation which, as I read it, has little, if any, application to the statement it allegedly supports. For instance, the majority states that “Due process of law does not require that the judge or division of three judges which renders the judgment actually see and hear the witnesses testify and observe their demeanor” and cites De la Rama v. De la Rama, 241 U. S. 154, as authority therefor. A mere reading of the decision by the Supreme Court in that case, which was an appeal from the Philippine Supreme Court, discloses that the reason for that part of its statement, which the majority embraces, was because of the agreement of the parties in that litigation that the record previously filed in the case before one judge was to be the record before a subsequent judge who had taken over upon the death of the trial judge.
The majority declines to accept the Nugent case, supra, which was a proceeding brought under the Tucker Act, 28 U. S. C. § 41 (20), as pertinent to this discussion. Of course, the opinion therein followed an action brought under the Tucker Act. However, the reasoning outlined by the able jurist in his opinion, whether it dealt with the Tucker Act or the most inconspicuous statute one can imagine, presents sound and logical common sense and reasoning, such as should be applicable to this court.
The majority asserts that because of the extensive territorial jurisdiction of the United States Customs Court, it is wholly impractical to send from New York to various ports of the United States, divisions to conduct hearings. Such a position was never asserted before the committees of Congress, and I doubt if it ever will be. Certainly, litigation in parts of the United States, other than New York, is entitled, if the chief judge is satisfied such assignment is necessary, to have a division dignify its hearings in protest cases just the same as litigation of not only important protest cases in New York but every protest case even though it involves only “a bag of peanuts” is arbitrarily provided for under existing practice.
As I have said in other language, but because of its importance repeat again, the practice resorted to in hearing protest cases in New York by less than a full division actually being on the bench during the taking of testimony in a case, and the full division, designated by the chief judge to ultimately decide the case, being by agreement of the parties permitted to do so, can be easily worked out for litigation at other ports; and if not, other expedients adopted.
' Considerable apprehension is noted in reading the majority’s views over the possible lack of uniformity in judicial decisions covering *196customs matters should my views prevail. I know of no reason to say that more appeals to the Court of Customs and Patent Appeals would follow, but even if such would be the case, little if any harm could result. Neither am I willing to accept the statement that decisions of single judges would not carry just as much weight and as much uniformity as the existing practice of decision by divisions, if under certain circumstances it would not be practical to have a division assigned to such cases.
I conclude with this observation. The majority states:
If we consider that the single judge, when hearing a protest case on circuit, acts as and for the division having cognizance of the subject matter, and, in fact, is the division on circuit, the long-established and customary distribution of jurisdictional powers as between the single judge on circuit and the division becomes rational, reasonable, appropriate, and practicable, and the statute becomes workable.
This statement embodies in clear language the position of the majority. The majority accepts as a definite finding, and imposes as the law, that a single judge of this court, when hearing a protest case on circuit, acts for the division having cognizance of the subject matter. My position is directly opposite to that viewpoint.
I look upon judges of the United States Customs Court as members of the Federal judiciary, vested with powers and authority conferred by statute the same, no different whatsoever, as that enjoyed by every Federal judge in this country. It is beneath the dignity of such a judge — not speaking personally — but looking only to the judiciary as we are proud to recognize it — to label him, while traveling ■throughout the broad jurisdiction of this court to hear and decide litigation, and to have it said that he is merely there to act as and for a judge or judges other than himself. I recognize that the longstanding practice before the Board of General Appraisers, which has been carried through the years by this court, .has its good points, and I know of no reason why much of the experience of that day cannot be borrowed if a readjustment of the practical application of the law governing this court is found to be necessary.
This may not be the most appropriate vehicle to carry such a lengthy discussion, for much of it has little prospect of appellate review, but it is the first conveyance of its kind to come my way since being a member of this court, so I take passage with a strong feeling that, if not now then ultimately, at least some of the reasoning herein will find vindication in the fact that the United States Customs Court functions as intended.
As I stated in my earlier memorandum, hereinbefore set forth, "Judge Cline concluded this case, and I feel it is far beyond the jurisdiction of this division to consider rulings made by her herein.”
For the foregoing reasons, I am signing a separate order denying plaintiffs’ motion for review.