Justice Young concludes an exhaustive dissenting opinion with the following specific findings of fact:

1. Merchandise in all respects identical to that in the case at bar, including width and quality, was freely offered for sale in the usual wholesale quantities in the ordinary course of trade in the principal markets of Japan for home consumption.

2. Merchandise similar to that in the case at bar was freely offered for sale in the usual wholesale quantities in the ordinary course of trade in the principal markets of Japan for home consumption.

3. Yokohama is a principal market of Japan for merchandise like that here imported.

4. Similar merchandise is freely offered for sale in the ordinary course of trade in the usual wholesale quantities in the principal markets of Japan for export to the United States.

5. The prices at which said merchandise was freely offered for home consumption exceeded the export prices by 5 to 7 per centum.

6. The entered values were equal to or slightly less than the export values on the date of shipment.

7. The appraised value and the value found by the court below were the correct values on the respective dates of shipment for merchandise sold for home consumption.

8. The foreign value of the merchandise involved herein, as foreign value is defined by law, is the same as that found by the appraiser and the trial court. 9. The dutiable value of the merchandise is that found by the appraiser and the trial court.

We may summarize the findings as follows:

Justice Young found that the merchandise had foreign values which included the textile consumption tax and that those values were higher than the entered or export values.

Justice Brown found that the merchandise had foreign values; but that, due to the provisions of section 303, the tax thereon could not legally be included as a part of such values; and that the export values were not higher than the foreign values.

Justice Sullivan found that the merchandise had no foreign values. He further held that, even if it were conceded that such values did exist and that the tax was included therein, they, nevertheless, were lower than the entered values, which, he found, corresponded to the export values.

The pertinent part of the judgment of the court reads as follows:

The above-entitled proceeding having come on to be heard, and the parties thereto having submitted the same for determination, and the court having carefully considered the case on the record made below, it is

Ordered, adjudged, and decreed that the judgment below be, and the same hereby is, reversed and the entered value is found to be the export market value on the date of shipment, cost of packing as stated on the invoices to be added.

It will be observed that the judgment recites that "the entered value is found to be the export market value on the date of shipment, cost of packing as stated on the invoices to be added." No reference is made to findings as to foreign values. The only fact stated in the

judgment is that the entered values are equal to the export values of the merchandise. It is obvious that this finding is not sufficient to determine the issues of fact raised by the evidence in the case. Because of the failure of at least two of the justices to concur in findings of fact, there was nothing upon which a judgment could legally be entered.

For the reasons stated the judgment is reversed and the cause remanded for findings of fact in conformity to the statute. Reversed and remanded.

UNITED STATES v. AMERICAN SPONGE & CHAMOIS Co. (No. 29751)

1. SECTION 304 (a), Tariff Act of 1922—CONSTRUCTION.

Section 304 (a) of the Tariff Act of 1922, requiring the collector to have articles of importation marked, if capable of being marked without injury, and which were not marked upon importation, is mandatory.

2. ARTICLES OF IMPORTATION-MARKING-PRESUMPTION.

Articles of importation permitted to go into the commerce of the country without marking are presumed to have been found by the collector to be incapable of marking without injury; and this presumption is not overcome by assessing an additional duty upon such articles afterwards. United States v. Martorelli, 12 Ct. Cust. Appls. 327, T. D. 40483, and other authorities cited and followed. Atterbury Bros. v. United States, 14 Ct. Cust. Appls. 416, T. D. 42056, distinguished.

3. OBITER DICTUM.

In the case of Atterbury Bros., supra, the statement of the court that any presumption arising from the release of the goods without marking was overcome "by the fact that he actually assessed the duty provided in the section" was unnecessary to a decision in that case and should not be considered as expressing the views of this court in that case or the case at bar in so far as it may conflict with the views herein expressed.

United States Court of Customs Appeals, April 9, 1928

APPEAL from United States Customs Court, Abstract 2471

[Affirmed.]

Charles D. Lawrence, Assistant Attorney General (Reuben Wilson and Oscar Igstaedter, special attorneys, of counsel), for the United States.

Comstock & Washburn (Geo. J. Puckhafer of counsel) for appellee.

[Oral argument October 5, 1927, by Mr. Igstaedter and Mr. Puckhafer]

Before GRAHAM, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIeld, Associate Judges

GRAHAM, Presiding Judge, delivered the opinion of the court: The merchandise imported in this case was 45 bales of crude sponges, the bales or coverings consisting of burlap tied with rope, as shown by the report of the assistant appraiser. After importation,

1 T. D. 42731.

the assistant appraiser reported the goods as not legally marked and the collector gave the following notice to the importer:

* * *

Referring to your importation of sponges you are informed that the appraiser has returned the invoice with the statement that the bales Star 2873 * * * 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. * * *

Thereafter the goods were transferred to the seventh floor of the warehouse and marked with the word "Nassau" upon the bales, after which the storekeeper and foreman, on November 26, 1923, and November 22, 1923, respectively, certified that the same were legally marked, and the goods were then delivered to the importer. There after, on May 8, 1924, the collector liquidated the entry, and assessed a 10 per cent additional duty under section 304 of the Tariff Act of 1922. On the hearing in the court below no testimony of any kind was introduced, and all the facts must be gathered from the record above recited. The Customs Court sustained importer's protest and the Government has appealed.

Section 304 (a) of the Tariff Act of 1922 is as follows:

SEC. 304. (a) That every article imported into the United States, which is capable of being marked, stamped, branded, or labeled, without injury, at the time of its manufacture or production, shall be marked, stamped, branded, or labeled, in legible English words, in a conspicuous place that shall not be covered or obscured by any subsequent attachments or arrangements, so as to indicate the country of origin. Said marking, stamping, branding, or labeling shall be as nearly indelible and permanent as the nature of the article will permit. 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 have 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. Unless the article is exported under customs supervision, there shall be levied, collected, and paid upon every such article which at the time of importation is not so marked, stamped, branded, or labeled, in addition to the regular duty imposed by law on such article, a duty of 10 per centum of the appraised value thereof, or if such article is free of duty there shall be levied, collected, and paid upon such article a duty of 10 per centum of the appraised value thereof.

Every package containing any imported article, or articles, shall be marked, stamped, branded, or labeled, in legible English words, so as to indicate clearly the country of origin. Any such package held in customs custody shall not be delivered unless so marked, stamped, branded, or labeled, and until every package of the importation which shall have 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.

The Secretary of the Treasury shall prescribe the necessary rules and regulations to carry out the foregoing provisions.

In the first place it will be observed that there is nothing in this record to indicate that the sponges were not properly marked when

imported. The collector found only that the bales were not marked and so advised the importer in his notice. If the sponges were properly marked, then no additional duty under section 304 could be imposed on their account. If the bales were not properly marked, then the importer must mark them, but no additional duty can be imposed for a failure to do so. This is well-settled law in this court. Hobe Button Co. v. United States, 12 Ct. Cust. Appls. 341, T. D. 40488; United States v. Martorelli, 12 Ct. Cust. Appls. 327, T. D. 40483; Hudson Forwarding Co. v. United States, 14 Ct. Cust. Appls. 94, T. D. 41587; Yohalem & Diamond v. United States, 14 Ct. Cust. Appls. 92, T. D. 41586. There is no fact appearing from the record, nor is there any legal presumption which can be called upon, to demonstrate that these individual sponges were not properly marked when imported. Therefore, so far as we may be advised by what is before us, the collector required the packages to be marked and assessed an additional duty of 10 per centum because said packages were not so marked upon importation.

But it is argued by the Government that the subsequent liquidation by the collector, in which he assessed the additional 10 per centum, must create the legal presumption that he found the goods—that is, the sponges were not legally marked; that this presumption overcomes any other presumption arising from his previous action, and will justify the imposition of such additional duty, in the absence of some showing to the contrary.

This position is contrary to the weight of authority in this court and not in consonance with a reasonable construction of the law.

This question was first presented to us in United States v. Martorelli, supra. There certain figs were imported in baskets, some in large baskets and some in small baskets, which, in turn, were inclosed in large baskets. It was shown that neither the figs nor the baskets were marked in conformity with the law. The collector caused the baskets to be marked, assessed an additional duty of 10 per centum, liquidated the entry, and released the goods. The Board of General Appraisers sustained the additional duty on the small baskets, holding them to be the article of importation, and overruled the imposition of the additional duty on the large baskets, holding them to be containers. Cross appeals were filed, the Government claiming that the additional duty should have been assessed against the entire importation, and the importer claiming none should have been assessed. The question of the legal effect of the collector's actions was, therefore, directly involved. This court held:

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. * * * The question in each case as to whether an imported article is capable of being marked as provided by sec

tion 304 (a), without injury, is a question of fact, to be determined either by the collector, in the performance of his legal duties, or by the Board of General Appraisers, on evidence properly taken.

This court thereupon held that no additional duty could be collected. The point involved in the case at bar was directly involved in the Martorelli case. The underlying theory upon which that decision was arrived at was that the legal presumption being that the collector had found the articles not capable of being marked, he was attempting to assess an additional duty for a failure to mark the package or container. For this, of course, there was no legal authority. The collector in the Martorelli case did exactly what the collector in the case at bar has done, and the case is, therefore, directly in point.

Di Martino v. United States, 14 Ct. Cust. Appls. 57, T. D. 41554, was a case on all fours with the Martorelli case, supra. In that case the baskets containing the figs were required to be marked, and the additional duty of 10 per centum was imposed. There was nothing in the record to indicate whether the figs were capable of being marked or not. In this respect, it was exactly as the case at bar. But the court held that the additional duty was improperly assessed.

The question again arose in Burstein & Sussman v. United States, 14 Ct. Cust. Appls. 255, T. D. 41877, where sanitary napkins inclosed in pasteboard packages were involved. The collector in that case, as in the case at bar, caused the packages, and not the napkins, to be marked, assessed an additional duty of 10 per centum, liquidated the entry, and released the goods. This court held that the imposition of such additional duty was improper, saying:

The collector did not require the importer to mark or label the napkins, and he delivered the goods to the importer without such marking. We must, therefore, presume that they were not capable of being marked, stamped, branded, or labeled without injury. To hold otherwise would mean that the collector failed to perform the duty imposed upon him by law. The marking ordered by the collector was an official determination by him that the napkins themselves could not be marked without injury and as the presumption of correctness attaching to that decision had not been overcome, it must be held that the napkins themselves were not capable of being marked, stamped, branded, or labeled, as prescribed by section 304 (a).

This case also is directly in point, the collector having taken action exactly as the collector did in the case at bar.

Following these cases, and announcing the same rule, was Gray & Co. v. United States, 15 Ct. Cust. Appls. 122, T. D. 42192. In this case cheeses, in containers of cheesecloth and paraffin, were involved. The collector required the marking of the cheesecloth covering, assessed an additional duty of 10 per centum, and released the goods. The court said:

The collector required the paraffin-coated cheesecloth containers to be marked so as to indicate the country of origin. He did not require that the cheese