Perhaps the leading case on the subject is Field v. Clark, 143 U. S. 649. There the Congress, by section 3 of the Tariff Act of October 1, 1890, provided that whenever the President shall be satisfied that the Government of any country producing sugars was imposing exactionsor duties which "he may deem to be reciprocally unequal and unreasonable," he should, by proclamation, suspend the free entry provisions of the law for such time "as he shall deem just." This was held to confer no legislative power, but to be simply ministerial in its nature.

This brings us to the conclusion that the powers granted by section 201 (a), supra, much less extensive than many of those heretofore referred to, are ministerial only, call for the exercise of no discretion except in methods, and are fact finding only. An attempted delegation of anything more than that would render the act unconstitutional. As the Supreme Court, in Hampton, jr., v. United States, supra, said, in commenting upon the somewhat extraordinary powers delegated to the President and discussed in Field v. Clark, supra:

After an examination of all the authorities, the court said that while Congress could not delegate legislative power to the President, this act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President; that the legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was merely in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.

It being the necessary conclusion, therefore, that the powers conferred upon the Secretary by said section 201 are ministerial only, what is to distinguish them from other ministerial powers delegated to that official? Are there certain ministerial powers created by law which the Secretary may perform through his assistants, and others which he may not, but must perform personally? If there are gradations of delegated ministerial duties and powers, where may we say the line of demarcation is between one class and the other?

If any such distinction exists, it has not been called to our attention by the parties here. Nor, in reason, are we able to state any rule which will delimit any such line of demarcation. Certainly the difficulties which the Secretary may encounter in arriving at the facts involved would not be a safe rule by which such distinction might be made.

As we have noted, proclamations under the countervailing duty provisions of the Tariff Act of July 24, 1897 (sec. 5), have been held to be properly made by the Assistant Secretary of the Treasury. Franklin Sugar Refining Co. v. United States, supra. Comparing that act with said section 201 (a), we find no essential differences.

The only differences are those of methods. In both cases the statute expressly provides that the duties shall be performed by the "Secretary of the Treasury." Both require him to find certain facts; both require him to publish them; both acts involve delicate questions of international relations; both may result in the imposition and collection of additional duties. Section 201 (a) perhaps expresses more fully the discretion which the Secretary may exercise in his methods. of procedure, but a similar discretion was implied in said section 5. The ascertainment by the Secretary, under said section 5, of the fact whether some bounty or grant was being indirectly paid or bestowed by some foreign nation upon the exportation of certain merchandise, might involve investigation through many channels and by various methods. This duty was not at all dissimilar to that imposed by said section 201 (a) upon the Secretary. We are unable to formulate any safe legal rule by which they may be distinguished.. Our conclusion is, therefore, upon this branch of the case, that the dumping order in question might legally be made by an Assistant Secretary, if properly authorized by the Secretary, and that, there being nothing to show to the contrary, such authority must be presumed.

We arrive then at the inquiry whether the legality of such order could be litigated in the reappraisement proceedings. The Government cites no authorities on this point, but calls attention to the opinion of the Customs Court rendered in Wm. Prym of America (Inc.) v. United States, T. D. 43040, 54 Treas. Dec. 372. The opinion cited, according to the suggestion made by Government counsel here, seems to rest upon the ground that such jurisdictional questions can not be raised in the Customs Court when a review is being had of a reappraisement. We do not so understand the opinion. In fact, Justice Tilson, speaking for the court, there states:

Having concluded that the purported dumping order published in T. D. 41713 was null and void and that all proceedings had thereunder were a nullity, after a careful examination of the record and the authorities upon the subject, we hold that the question raised in the protest is purely a jurisdictional one and may be raised in any judicial tribunal, in any proceeding, at any time the question arises. We have had occasion to discuss the scope and extent of section 501 of the Tariff Act of 1922 in several cases, and to outline the functions and powers of the Customs Court, both in reappraisement and review. In Johnson Co. v. United States, 13 Ct. Cust. Appls. 373, T. D. 41318, we said:

If, then, the functions of the single general appraiser, and the Board of General Appraisers in reappraisement matters are purely judicial, the ordinary rules applicable to other courts and judicial proceedings will apply except where modified or amended by the statutory law here applicable.

We are unable to conclude that this is a correct conclusion of the matter. If the proceeding before the board is appellate, then, surely, the same rules must apply which would obtain in other courts of appeal.

If this be true, then any question affecting the appraisement, either as to its amount or legality, is properly before the Customs Court on review. If such matters are not so cognizable by the Customs Court, they could not be considered here on appeal, for this court reviews the judgment of the reappraising court on questions of law only. (Sec. 501, supra.) Every reasonable view of the matter supports the conclusion that if there be, in fact, no valid appraisement, the Customs Court may so find, on review. Without attempting to express any view as to whether such a question may be raised on a protest to classification, it is sufficient to say that such question need not wait for protest, but may be raised upon reappraisement.

In many cases, while the exact question here raised has not been involved, the Customs Court, on review of reappraisement, has passed upon the validity of the appraisement, and we have reviewed that court's judgments on appeal. Among these are Kuttroff, Pickhardt & Co. v. United States, 12 Ct. Cust. Appls. 299, T. D. 40313 and United States v. Tower & Sons, 15 Ct. Cust. Appls. 83, T. D. 42158. From what we have said, it follows that the judgment of the Customs Court should be, and is, reversed.

BLAND, J., specially concurring: With the result reached in the opinion of Judge Graham and with many of the conclusions of law I am in accord. I can not agree that the record in this case shows what is so plainly said in the opinion, that the act is the act of the Secretary, unless by that is meant that in effect it is the act of the Secretary.

The record shows, and especially the order itself shows, that it is the act of the Assistant Secretary. He made the finding and signed it, and when he signed it he signed it in his own name and not in that of the Secretary

I think the two statutes, section 201 (a) of the Antidumping Act, 1921, and sections 246 and 247 of the Revised Statutes, quoted in the opinion, clearly authorize an Assistant Secretary to make the finding and make the order in his own name, which I think he did.

Let it be recalled that section 247, supra, in part provides that the "Assistant Secretaries of the Treasury shall * * * perform such other duties in the office of the Secretary as may be prescribed by the Secretary or by law." It will be presumed that the Secretary "prescribed" to his Assistant Secretary, Edward Clifford, the duty of performing such service as was necessary to carry out the provisions of section 201 (a), supra.

Were it not for the existence of the special statute authorizing the Assistant Secretary to "perform such other duties," I could not

agree that Edward Clifford, Assistant Secretary, in making a finding "after due investigation," was acting in accordance with the law.

The question of the constitutionality of the provisions of the section involved here has not been presented to this court, and I have not given, and am not now giving, that question any consideration.

DISSENTING OPINION

GARRETT, Judge: Being unable to agree with the conclusion reached by the majority of the court in this case, and because the question involved appears to be quite an important one, I venture briefly to state my own conclusions and the reasons therefor.

U. S. C. 304, R. S. 356, provides:

The head of any executive department may require the opinion of the Attorney General on any question of law arising in the administration of his department. Acting under this statute, the Secretary of the Treasury on October 22, 1925, addressed a letter to the Attorney General, stating that he had under consideration the matter of prescribing the duties of the Director of Customs pursuant to the act of March 4, 1923 (ch. 251, 42 Stats. 1453), and requesting the Attorney General to advise "whether, under the authority contained in the act of March 4, 1923, the statutory duties and others of a similar character imposed upon the Secretary of the Treasury by the acts mentioned, may be delegated by him to the Director of Customs to be examined by the latter by direction of the Secretary."

In his letter the Secretary referred specifically to sections 161, 248, and 249 of the Revised Statutes, the act of December 18, 1890 (ch. 22, 26 Stat. 690), the Food and Drugs Act of June 30, 1906 (ch. 3915, 34 Stat. 768), section 201 of the Emergency Tariff Act of May 27, 1921 (ch. 14, 42 Stat. 9), and the Tariff Act of September 21, 1922 (ch. 356, 42 Stat. 858).

The Attorney General, responding to this request, reviewed the several statutes so called to his attention and speaking, first, of certain regulations called for under certain of these statutes said:

The making of regulations of this kind designed to have the force of law, to be binding upon the public, and to be recognized and enforced by the courts is, I think, a duty which the statutes place upon the Secretary personally. The Attorney General then continued:

In my opinion the powers conferred upon the Secretary by section 201 of the act of May 27, 1921, the so-called antidumping provision, are intended to be personal to the Secretary, and the findings and their publication should have his personal approval.

So, too, I think the provisions of sections 616, 617, and 618 of the tariff act of September 21, 1922, relating to the compromise of claims and the abatement of fines, penalties, and forfeitures require the personal action of the Secretary. I 61732-29-VOL 565

think the powers and duties under the other provisions of law mentioned in your letter, and to which I have referred, may be delegated by you to your subordinates, as you may deem wise. (Opinions of the Attorney General, folio 35, p. 15.) The act of March 4, 1923 (ch. 251, 42 Stat. 1453), was entitled:

An act to provide for the necessary organization of the Customs Service for an adequate administration of the tariff act of 1922 and all other custom revenue laws.

The first section of the act authorized the Secretary of the Treasury to appoint a Director of Customs and certain assistants and prescribe their duties "when not otherwise defined by law."

By an act of March 3, 1927, which was to take effect April 1, 1927, Congress provided for the creation of a Bureau of Customs in the Department of the Treasury. This act was in the nature of a substitute for the Act of March 4, 1923, supra, and gave to the Secretary substantially the same powers in the matter of reorganization of the Customs Service as were given in the former law. The Secretary, on March 18, 1927, issued his order, T. D. 42044, fixing the organization under the Act of March 3, 1927. Paragraph 4 of this order reads as follows:

All the rights, powers, privileges, or duties in respect of the importation or entry of merchandise into or exportation of merchandise from the United States vested in or imposed upon the Secretary of the Treasury by the tariff act of 1922, or any other law, are hereby conferred or imposed upon the Commissioner of Customs. The acts, findings, and decisions of said commissioner, with respect to said matters, shall be final so far as the Treasury Department is concerned unless modified or disapproved by the Secretary of the Treasury: Provided, That the determination of countervailing duties under section 303 of the tariff act of 1922, and findings of dumping under the antidumping act of 1921, and all amendments to the Customs Regulations shall not be effective unless approved by the Secretary of the Treasury.

Evidently the language of the proviso quoted, supra, was a recognition by the Secretary of the Treasury of the construction given the statutes by the Attorney General in the opinion of December 12, 1925, also quoted supra.

Nevertheless, the finding which is at issue in this case is not shown to have been made by the Secretary personally but appears from its text to have been the finding of "Edward Clifford, Assistant Secretary." It says, "after due investigation I find" (italics mine), and is signed by Mr. Clifford.

I do not think that it was the intent of Congress under section 201 (a), Antidumping Act of 1921, to authorize the Secretary of the Treasury to delegate the authority conferred upon him to make the findings therein provided for, even to an Assistant Secretary, nor do I find in the record, or in any official orders outside the record of which the court would be charged with judicial knowledge, where the Secretary attempted to do so. Neither can I agree with the theory