OPINION CONCURRING IN THE CONCLUSION
Mollison, Judge:I concur, with some reservations, in the conclusion reached by my colleagues. My reservations are occasioned by some doubt as to whether the effect of a proclamation terminating in whole a previous proclamation initiating or effectuating tariff changes and issued under the authority of section 350 of the tariff act, as amended, is in all cases to restore the status quo ante the initiating proclamation.
This, of course, depends upon whether the effect of the promulgation of new and superseding tariff rates or import restrictions is to work a repeal of the former rates or restrictions or merely to suspend the same with inherent self-generating power to return to operation without being specifically, and with respect to each rate or restriction, proclaimed by the President pursuant to some constitutionally delegated power from the Congress.
If (1) the issuance of an initiating proclamation under section 350, supra, effects a repeal, rather than a suspension, of the tariff law with respect to the duties or import restrictions lawfully in operation prior to the talcing effect of the proclamation, and (2) the termination of that proclamation is a repeal of the law as proclaimed by the President, it does not seem to be open to question but that section 108 of Title 1, United States Code, cited by counsel for the plaintiff, would be applicable. That section reads as follows:
108. Repeal of repealing act. Whenever an Act is repealed, which repealed a former Act, such former Act shall not thereby be revived, unless it shall be expressly so provided.
See Kohlsaat v. Murphy, 96 U. S. 153, 24 Law. ed. 844; Chicago, Milwaukee and St. Paul Railway Co. v. United States, 127 U. S. 406, 409; United States v. Boasberg, 283 Fed. 305, 308; and also Milne et al. v. Huber et al., 17 Fed. Cas. 403, No. 9617, and Bender v. United States. *14493 F. (2) 814, holding that the statute applies as well to repeals by implication or repugnancy as to express language.
So far as direct language is concerned, section 350, supra, is silent on the subject of whether it was the intention of the legislature that upon compliance with the conditions precedent expressed in that section and the issuance of a Presidential proclamation thereunder the current law on the subjects covered by the proclamation was to be suspended or was to be repealed.
In contradistinction, in section 3 of the Tariff Act of 1890, which was the subject of the decision of the Supreme Court of the United States in Field v. Clark, 143 U. S. 649, 36 Law. ed. 294, and which likewise had for its purpose the fostering of reciprocal trade, the President was authorized “to suspend, by proclamation to that effect” the provisions of that act with relation to the free entry of the items of merchandise specified, and during such suspension certain duties were to be in effect on the importation of such items. Suspension implies that restoration of the status quo is to follow the end of the suspension.
Under section 350, supra, and under section 336, the flexible tariff provision, there is no suggestion of suspension. On the contrary, the President in each case is to proclaim duties or import restrictions, and it would seem that his act, as the agent of Congress, is of the same nature and quality as would be that of Congress itself, if it were to establish new and superseding tariff rates or import restrictions (Hampton & Co. v. United States, 276 U. S. 394, 411, and William A. Foster & Co., Inc. v. United States, 26 C. C. P. A. (Customs) 59, T. D. 49599). It would hardly be considered, if Congress directly legislated upon the subject by enacting new tariff rates or import restrictions, that when the new rates or restrictions superseded the prior rates or restrictions, the latter were merely suspended from operation. On the contrary, it would be considered that they were completely eliminated from the tariff act.
In the Metropolitan and American Bitumuls cases, cited by counsel for the defendant and relied upon by the majority as dispositive of the issue, the situation was not quite the same as in the present case, and the ratio decidendi of those cases is not directly applicable here. Those cases related to changes in tariff rates initiated by successive Presidential proclamations based, in turn, upon successive trade agreements, which proclamations were issued, and which trade agreements were entered into, under the authority of section 350, supra.
It is clear that it was the view of our appellate court that so long as the external obligation of the United States, represented by the first trade agreement, existed, the rates specified therein and the proclamation issued in connection therewith must be considered not to have *145been repealed or eliminated by the lower and inconsistent rates called for by the second trade agreement and proclamation issued in connection therewith, but to have been placed in a state of dormancy or suspension with inherent power therein to return to operation upon the happening of a certain event — the termination of the second agreement and the proclamation issued in connection therewith.
While it is true that, in this case, there were successive Presidential proclamations changing the rate of duty applicable to merchandise such as that at bar, only one of those proclamations, the second, was authorized by section 350, supra, and issued in connection with a trade agreement entered into under that authority. The first proclamation (No. 2066, December 14, 1955, T. D. 46795) was issued under authority of section 336, the flexible tariff provision of the act of 1930.
There was consequently no other external obligation of the United States on the same subject matter in force and effect during the life of the second Presidential proclamation issued in connection with the Mexican Trade Agreement. If, therefore, the result which obtained in the Metropolitan and American Bitumuls cases, supra, properly obtains in this case, i. e., that upon the termination of a trade agreement and Presidential proclamation issued in connection therewith, the tariff status quo ante the proclamation is restored, it must be for a reason other than the existence of an external obligation of the United States, i. e., a prior trade agreement, and a Presidential proclamation issued in connection therewith.
The provision of section 350, supra, with respect to the termination of previous initiating proclamations is very meager and certainly does not, of itself, reveal the legislative intent. While there are expressed conditions precedent to the issuance of an initiating proclamation, there are no expressed conditions precedent to the termination of the same. Compare the provisions of section 336 (f) of the Tariff Act of 1930. In that case, the termination can only follow the performance of certain conditions precedent, i. e., must be done in the same manner and subject to the same conditions and limitations as were followed in the case of the initiating proclamation.
It may very well be that from the fact that, under section 350, supra, a prior initiating proclamation changing tariff rates or import restrictions may be terminated, the suspension, rather than the repeal, of the tariff status quo ante may be implied. Or it may be that the powers of the President under the reciprocal trade agreements provision of the tariff act are of like nature and subject to similar construction as those which were the subject of Field v. Clark, supra. In either case, of course, the conclusion reached by the majority in this case would follow. I prefer to base my concurrence in that conclusion on those reasons rather than on the decisions in the Metro*146;politan and American Bitumuls cases, supra, which, it seems to me, differ both as to facts and the basis for the law applied.