The Oberteuffer case defining the appraiser's duties, and that and the Klingenberg cases declaring those of the collector, plainly settle what of the rules prescribed by section 18 shall be performed by these respective officials, and that the ascertainment and fixing of dutiable costs and charges" are solely within the powers of the collector and accord with the deductions previously drawn by us from the language of the act. Whatever construction may be put upon the latter part of section 18, declaring that the words "value," or "actual market value," or "wholesale price" whenever used in this act shall be construed to be "the actual market value or wholesale price of such, or similar merchandise comparable in value therewith, as defined in this act,” whether such be construed simply as a rule extending the classes of goods that may be examined by appraisers or as a reference definition of "actual market value," the extension of that reference from the provisions of the "section" to those of the whole "act" by the act of 1909 would seem to conclude the question that Congress had written the definitions of "actual market value" therein referred to, not in section 18 alone, if at all, but also in other parts of the act. This exact provision in the amended act (section 19 customs administrative law of 1890, as amended in 1897) read: That the words "value" or "actual market value" whenever used in this act * * * shall be construed to be the actual market value or wholesale price as defined in this section. "This section" was "section 19" (here 18). By amendment in 1909 these words were made to read "as defined in this act." Why did Congress change the reference from "this section" to "this act"? It could be for no other reason than that Congress deemed that it had, if you please, defined actual market value in other places in the act than in this "section" and that the words should take their meaning not from the language of section 18 alone, if at all, but from the whole act. Now, it so happens that "actual market value" is defined in section 3, and at least four times in section 5, not to say that it is distinguished from "costs and charges" in sections 10 and 13 of "this act." At least we have for this the authority of the Supreme Court, which in the Oberteuffer case looked to the provisions precisely alike those of section 5 to, and therefrom did, determine what Congress meant by the words "actual market value." The court then proceeded to further declare that section 2902 of the Revised Statutes, which was identical with section 10 of the present act, did not empower the appraiser to consider costs and charges. Then followed the Klingenberg case, where sections 13, 14, and 15 of the here amended act, which are identical with sections 13 and 14 of this act, were construed. The court there declared of section 14 as to "costs and charges," "this section clearly allows and provides for an appeal by the importer from the decision of the collector as to both rate and amounts of duty, as well as dutiable costs and charges, and as to all fees and exactions," and pointed out that if such were within the appraiser's duties, under section 13, they would become final and conclusive under that section and not be the subject of an appeal from the collector's decision. With these constructions of the other parts of the "act" before it Congress reenacted them literally, and in its changes in section 18 expressly by amendment provided that these adjudicated definitions should be considered in determining what Congress meant by the words "actual market value." How, therefore, can we now say they should be excluded from that consideration? If, therefore, we respect that fundamental statutory principle of reading all parts of the act together and adopting that construction that harmonizes the whole and gives some effect to all parts of the act, but one conclusion follows: It would seem to us that in the interest of both fairness to honest and the protection of the revenues against dishonest importers this must be a welcome rule. If we hold that an appraising officer's return can include costs and charges, he may by any sort of general return which conceals the fact of such inclusion defeat any inquiry into such by an appeal directed at his decision, as there would be no remedy for the importer for such by direct appeal from the collector's decision. See N. Erlanger, Blumgart & Co. v. United States (154 Fed., 949). On the other hand, if there were fraud as to such upon part of the importer, undiscovered for the brief period of appealable appraisement, the Government would be without remedy. We think that the conclusion in this very important case not only accords with the interpretation of the law by the Supreme Court extending over a period of many years, and gives effect to and harmonizes all provisions of the act, prevents injustice to honest importers, and conserves the powers of recoupment in the Government against dishonest ones. Reversed. DISSENTING OPINION. MONTGOMERY, Presiding Judge: I find myself unable to assent to the conclusion reached by the majority of the court in this case. I take it that it is conceded that a decision of the appraiser acting as such, and proceeding within correct principles of law in a matter committed to his judgment, is final and concludes both the importer and the collector. I think there is no disagreement either that in carrying into effect the provisions of section 7, which provides that merchandise shall not. be admitted at less than invoice or entered value, the collector must of necessity ascertain what the invoice and entered value is, and if it consists of the per se value of the goods, and also the value of cartons, cases, charges, etc., that these are the subject of ascertainment by him. See United States v. Passavant (169 U. S., 16). The real question in this case is whether the duty imposed upon the appraiser to fix the value of imported merchandise includes the duty of appraising as a part of the value the cost of cartons, cases, and other charges. The importers contend that the value to be fixed by the appraiser does include these items, and that therefore in the absence of an appeal the collector is concluded from going back of the finding of the appraisers. The Government, on the other hand, distinguishes between the per se cost of the goods imported and the charges mentioned. The duty is therefore devolved upon the court of construing the statute. The statute itself, in the absence of uncertainty or ambiguity, is our guide. If there be ambiguity or conflict in its provisions, it is our duty to reconcile them as well as may be. Let us take the statute as we find it. of the act of 1909 reads as follows: Subsection 10 of section 28 That it shall be the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraisers (or of the collector, as the case may be), by all reasonable ways and means in his or their power to ascertain, estimate, and appraise the actual market value and wholesale price of the merchandise at the time of exportation to the United States, in the principal markets of the country whence the same has been imported, and the number of yards, parcels, or quantities, the actual market value or wholesale price of every of them, as the case may require. Subsection 18 provides: That whenever imported merchandise is subject to an ad valorem rate of duty, or to a duty based upon or regulated in any manner by the value thereof, the duty shall be assessed upon the actual market value or wholesale price thereof, at the time of exportation to the United States, in the principal markets of the country from whence exported; that such actual market value shall be held to be the price at which such merchandise is freely offered for sale to all purchasers in said markets, in the usual wholesale quantities, and the price which the manufacturer or owner would have received, and was willing to receive, for such merchandise when sold in the ordinary course of trade in the usual wholesale quantities, including the value of all cartons, cases, crates, boxes, sacks, casks, barrels, hogsheads, bottles, jars, demijohns, carboys, and other containers or coverings, whether holding liquids or solids, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States, * *. That the words "value," or "actual market value,” or “wholesale price," whenever used in this act, or in any law relating to the appraisement of imported merchandise, shall be construed to be the actual market value or wholesale price of such, or similar merchandise comparable in value therewith, as defined in this act. * It is difficult to conceive where these two sections, read by themselves, can be said to be ambiguous. One section imposes the duty upon the appraiser of appraising the actual market value and whole sale price of merchandise at the time of exportation to the United States. Another section says that the actual market value shall be construed to be the "actual market value or wholesale price of such or similar merchandise * as defined in this act." We turn then to provisions of the act to ascertain if there be any definition of actual market value, and we find in the same subsection Congress dealing with actual market value, and declaring that "duty shall be assessed upon the actual market value or wholesale price thereof," and that "such actual market value shall be held to be the price at which such merchandise is freely offered for sale," etc., "including the value of all cartons, cases," etc. Elaboration does not add to the force of the language employed. Actual market value is to be appraised. Actual market value whenever used in the act is to mean such actual market value as defined. The defined actual market value is actual market value which includes the value of cartons, cases, charges, etc., and no other actual market value. It seems to me that there is no escape from this conclusion. But in the main opinion it is said of subsection 18: * It states: "Duty shall be assessed upon the actual market value or wholesale price thereof" and "that such actual market value" (upon which duty shall be assessed) "shall be held to be the price," etc. * * By the phrase "such actual market value," "such" refers what follows back to "the actual market value" upon which "duty shall be assessed,” as dutiable “actual market value." This section refers intrinsically and expressly to the collector's duty and actions. And throughout the opinion an attempt is made to distinguish between the actual market value as such and so-called dutiable actual market value. Such purpose, however, is not indicated by the paragraph itself. In the first place, one has to import the word "dutiable" bodily into the text in order to justify such construction. It is true that the provision reads that the duty shall be assessed upon the actual market value, but it proceeds to define then what this actual market value is, and is the only place in the statute in which there is so specific a definition of actual market value. But this is not all. Congress has not made any such distinction between assessable market value and dutiable market value as might be inferred from the reasoning of the main opinion. Quite the reverse. If we turn to subsection 13 we find: If the collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days thereafter appeal to reappraisement, which shall be made by one of the general appraisers, or if the importer, owner, agent, or consignee of such merchandise shall be dissatisfied with the appraisement thereof, and shall have complied with the requirements of law with respect to the entry and appraisement of merchandise, he may within ten days thereafter give notice to the collector in writing of such dissatisfaction. The decision of the general appraiser in cases of reappraisement shall be final and conclusive as to the dutiable value of such merchandise. And again in the same section, after providing for an appeal and referring to the action of the board, it is provided: In such cases the general appraiser and boards of general appraisers shall proceed by all reasonable ways and means in their power to ascertain, estimate, and determine the dutiable value of the imported merchandise. And then providing that— * * * The decision of the appraiser, or the person acting as such (in case where no objection is made thereto either by the importer, owner, consignee, or agent) or the single general appraiser in case of no appeal, or of the board of three general appraisers in all reappraisement cases shall be final and conclusive against all parties and shall not be subject to review in any manner for any cause in any tribunal or court. * * * So that it is apparent that it will not do to say that the Congress has, in the act in question, distinguished between actual market value as defined by section 18 and dutiable market value. But it is further suggested that the latter part of subsection 13, defining the duties of the collector, conferred upon him the duty of ascertaining the costs and charges dutiable by law. The clause reads as follows: The collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law. It must at least be conceded by anyone who reads this clause that it is quite as consistent with the view that the appraisers fix as dutiable costs and charges the actual market value as defined by subsection 18 as to hold that it confers the duty of fixing the costs and charges upon the collector. The duty imposed upon the collector here is a duty to ascertain, fix, and liquidate the rate and amount of duties. To be paid on what? On such merchandise and on the dutiable costs and charges thereon according to law. Now such merchandise, and the dutiable costs and charges thereon according to law, all come under one head as the actual value for dutiable purposes as fixed by the Board of General Appraisers. It will not do to say that the collector liquidates the rate and amount of dutiable costs and charges. What he liquidates is the rate and amount of duties, and it is by a strained construction that this clause is given any other meaning. Subsection 14 is also cited, which reads: That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character, * * shall be final and conclusive. * * * * This, likewise, is open to a construction wholly consistent with the views I have expressed as to subsection 10 and subsection 18, and more consonant therewith than with any other view that could be maintained. The decision of the collector here referred to is as to the rate and amount of duties chargeable upon imported merchandise, which rate and amount of duties are chargeable upon such imported merchandise, including the dutiable costs and charges, the assessment |