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that it was the intent of Congress, either by the Antidumping Act itself or when construing it in connection with other statutes, to confer this authority upon an Assistant Secretary by law, and so authorize him to act independently of the Secretary himself.

I have been unable from my analysis of the Antidumping Act of 1921 to arrive at any conclusion other than that there was conferred upon the Secretary by Congress an authority which called for the exercise of discretion-using that word in the legal sense-and that this distinguishes this case from the cases cited as authorities in the majority opinion, wherein the courts sustained as valid several orders issued by Assistant Secretaries. A close examination of the facts in those cases reveals, it seems to me, that the orders issued in them were purely ministerial or administrative, while the finding in the case at bar goes beyond this, and involves, to say the least of it, an admixture of fact and opinion, and I can not agree that in using the word "secretary" Congress intended it to be construed as generic in character so as to include other officials not specifically named and authorized to act.

To meet the requirements of section 201 (a) it must be found, first, that importations of merchandise are being made, which merchandise "is being sold or is likely to be sold in the United States or elsewhere at less than its fair value," and, second, that by reason of this importation "an industry in the United States is being, or is likely to be injured, or is prevented from being established." (Italics mine.) Nowhere in the act does Congress give a definition of "fair value," nor is there in any other customs statute such a definition. Surely, in order to make a finding, there must be somewhere, in the mind of some person, a definite idea as to what constitutes the “fair value" of a given article and Congress not having defined it, the duty of determining it devolves upon the Secretary of the Treasury. and, to my mind, the determination of this, as well as other matters contained in the quoted language, calls for the performance of more than a mere administrative or ministerial function.

It is largely because of the nature of the act to be performed that I am of the opinion that the intent of Congress in passing the Antidumping Act of 1921 was to have it performed by the Secretary personally, and expressly so provided. It is an act "designed to have the force of law, to be binding upon the public, and to be recognized and enforced by the courts" just as are the regulations referred to in the opinion of the Attorney General as requiring the Secretary's personal action.

It is legitimate and proper to look to the history of this legislation to aid in construing it and arriving at the intent of Congress by which this court must be guided. When a bill containing antidumping legislation was reported to the House from the Ways and Means

Committee in 1921, it did not have the requirement for findings by the Secretary of the Treasury, but provided another method. After the bill had passed the House, the Senate committee amended this portion of it and the Senate agreed to the amendment which is the exact language of the law, 201 (a). The House concurred in the Senate amendment, and provided for the action to be taken by the "Secretary of the Treasury (hereinafter in this Act called the 'Secretary')." On a matter so important as I conceive this to be, I can not but feel that if Congress had intended to extend this power to Assistant Secretaries they would have said so in express words, and I can not reconcile myself to what seems to me to be a writing into the statute of words which the Congress itself did not insert, directly or indirectly.

. It is evident from the history of this legislation, as same appears of record, that Congress exercised great care in drafting and considering it. This antidumping law was an innovation in customs legislation. It yet stands as an act to itself, independent of all other customs laws, and is the only one of five titles in the act of which it was a part which does so stand. The other titles have been repealed, modified, or carried into the Tariff Act of 1922. This remains as the only integral and untouched part of the act of 1921.

I agree with the opinion of the Attorney General, and believing that the Customs Court reached the correct conclusion think that its judgment should be affirmed.

(T. D. 43475)

Antidumping Act



The order, T. D. 41713, involved in this case, purporting to be a finding under section 201 (a), Antidumping Act of 1921, signed "F. A. Birgfeld, Acting Assistant Secretary," it appearing from the record that Mr. Birgfeld was, at the time, chief clerk of the Treasury Department, is void ab initio because of the lack of authority on his part to make such finding.


It was not the intent of Congress in the Antidumping Act of 1921, when construed by itself or in connection with other statutes relating to the organization in the Treasury Department and the duties of the different officials therein, to confer upon the chief clerk purporting to be at the time "Acting Assistant Secretary" authority to make findings under said act.


A finding under section 201 (a) of the Antidumping Act of 1921 which is void because made by a person without authority to make it is not validated by its publication in the weekly TREASURY DECISIONS which are issued over the name of the Secretary himself.


A judgment in reappraisement based upon a finding under section 201 (a) of the Antidumping Act which was void from the beginning is itself void, the jurisdictional requirements of the statute not having been complied with; and the importer is not precluded by such void judgment, although he did not appeal therefrom, from proceeding by way of protest.

United States Court of Customs and Patent Appeals, June 22, 1929


APPEAL from United States Customs Court, T. D. 43040

Charles D. Lawrence, Assistant Attorney General (Oscar Igsteadter, special attorney, of counsel), for the United States.

B. A. Levett for appellee.

Lamb & Lerch, amici curiæ.

[Oral argument May 16, 1929, by Mr. Igstaedter, Mr. Levett, and Mr. Lerch]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, and GARRETT, Associate Judges 1

GARRETT, Judge, delivered the opinion of the court:

There is no substantial controversy concerning the facts of this case, the issues presented being questions of law.

It appears from the record that on July 19, 1926, an order was issued from the Treasury Department purporting to be a finding under section 201, Title II, Antidumping Act of 1921, T. D. 41713. The order is signed "F. A. Birgfeld, Acting Assistant Secretary," and reads as follows:

Antidumping-Finding by the Secretary of the Treasury

The Secretary of the Treasury makes a finding under section 201 (a), antidumping act of 1921, of dumping in the case of pins imported from Germany


To Collectors of Customs and Others Concerned:

Section 201 (a) of the antidumping act of 1921 provides as follows:

That whenever the Secretary of the Treasury (hereinafter in this Act called the "Secretary"), after such investigation as he deems necessary, finds that an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation into the United States of a class or kind of foreign merchandise, and that merchandise of such class or kind is being sold or is likely to be sold in the United States or elsewhere at less than its fair value, then he shall make such finding public to the extent he deems necessary, together with a description of the class or kind of merchandise to which it applies in such detail as may be necessary for the guidance of the appraising officers.

After due investigation I find that the industry of making pins in the United States is being or is likely to be injured by reason of the importation into the

1 LENROOT, Judge, did not participate in this decision, the case having been argued before he took his Ceat.

United States of common and safety pins from Germany, and that such merchandise is sold or is likely to be sold in the United States at less than its fair value.

F. A. BIRGFeld, Acting Assistant Secretary.

March 8, 1926, appellee made entry, No. 865579, of an importation from Germany of merchandise consisting of safety pins. This was prior to the issuance of T. D. 41713, but this fact is immaterial in the determination of the issues. The local appraiser made return of the invoice with an appraisement made pursuant to the finding of Birgfeld, above quoted, and the importer filed an appeal for reappraisement, as provided in section 501 of the Tariff Act of 1922 and section 210 of the Antidumping Act of 1921. This appeal was abandoned when the case came on for trial before Chief Justice Fischer, sitting in reappraisement, and he rendered decision, saying:

This appeal having been abandoned, the appraised values are affirmed.
Let judgment be entered accordingly.

The entry was then liquidated as of date March 28, 1928, and assessment made under section 202 (a), Antidumping Act of 1921, which reads as follows:

SEC. 202. (a) That in the case of all imported merchandise, whether dutiable or free of duty, of a class or kind as to which the Secretary has made public a finding as provided in section 201, and as to which the appraiser or person acting as appraiser has made no appraisement report to the collector before such finding has been so made public, if the purchase price or the exporter's sales price is less than the foreign market value (or, in the absence of such value, than the cost of production), there shall be levied, collected, and paid, in addition to the duties imposed thereon by law, a special dumping duty in an amount equal to such difference.

Thereupon the importer proceeded by way of protest, his protest being filed in accordance with the statute, and being declared to be

On the ground that the so-called "antidumping finding" on the basis of which you (the collector of customs) have assessed such special dumping duty, reported in T. D. 41713, was illegal, null and void, and of no force and effect in that it was not signed and/or issued by the Secretary of the Treasury.

We claim that no special dumping duties or other duties are properly assessable against such merchandise except such duties as properly accrue under the act of September 21, 1922 (the tariff act of 1922).

The Customs Court rendered decision sustaining the protest and directing the collector "to reliquidate, refunding all the dumping duties assessed upon said merchandise by virtue of T. D. 41713." The Governmet has appealed to this court.

The first issue presented is as to the legality of T. D. 41713, it not having been signed by the Secretary of the Treasury personally, but by another person who signs as "Acting Assistant Secretary."

Counsel for appellant makes no contention upon this question in the brief filed or in the discussion at bar. His argument is wholly upon the second legal question later determined herein.

In pursuing this course, counsel for the Government has followed the correct ethical legal practice under the circumstances attending the controversy, because he is an official assistant to the Attorney General of the United States, who, on December 12, 1925, in the course of official duty, rendered an opinion found in Opinions of the Attorney General, folio 35, page 15, the syllabus of which reads:

The powers conferred on the Secretary by section 201 of the emergency tariff 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.

The argument on this phase of the case is presented in a brief and at the bar by amici curiæ, under permission granted by this court. It is the contention of appellee that the authority conferred upon the Secretary of the Treasury under section 201 (a) of the Antidumping Act of 1921 is an authority which must be exercised by the Secretary personally, that he alone is clothed with power to execute it, and that the order promulgated by Mr. Birgfeld as Acting Assistant Secretary was without authority of law and hence was null, void, and of no effect. It is further contended that a legal finding and order under said section 201 (a) must be first had as a basis for the assessment of the duties provided for in section 202 (a) quoted above, and that since the Birgfeld order and finding was void because of lack of authority in him to issue it, the assessment of the collector based upon it is lil:ewise null and void.

It is the contention of amici curiæ that under the law the authority granted in section 201 (a) was one which could be delegated by the Secretary of the Treasury to a proper subordinate in the Treasury Department; that Mr. Birgfeld was the chief clerk of the department and at the time of the issuance of the order was temporarily an Acting Assistant Secretary and hence had the legal power to issue it. It is also contended that the general order of the Secretary of the Treasury for the publication, as provided by law, of what are known as TREASURY DECISIONS Constituted such a ratification by him of T. D. 41713 as to render it legal and effective even though the latter was not signed by him personally. There is published weekly a pamphlet containing a compilation of Treasury decisions, decisions of the Customs Court, decisions of the Court of Customs and Patent Appeals, and of such decisions of other United States courts as relate to Treasury matters. Upon the outer cover of this pamphlet there appears regularly, over the name of the Secretary of the Treasury, a statement which reads:

The within decisions are published for the information and guidance of customs, internal-revenue, and prohibition officers and others concerned.

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