The opinion
CONCURRING OPINION.
Barber, Judge:
I concur in the reversal of the judgment below only because of what I regard as the controlling effect of the rulings of the Supreme Court in the cases cited in the opinion. The facts in the case of Kimball v. The Collector differ from those here.
There the appraisers appraised the importation at the entered value, and declined to appraise it at the value which would entitle it to free entry, although unofficially they gave their opinion that its value was not such as to make it dutiable. Here it has been officially appraised at a value entitling it to free entry.
Again, the two statutes under consideration in that case, as appears from the court’s opinion, the one giving free entry to merchandise of the character there under consideration, and the other providing that duty should not be assessed upon less than the invoiced or entered value, were concurrently enacted, while here the act giving free entry- to printing paper like this importation was enacted long after the provision that duty should in no case be taken on less than the entered value.
The well-known shortage of printing paper at the time of the later statute makes obvious the purpose of Congress therein. Its effect was to divide printing paper into two classes, one dutiable, the other free, and the line of demarcation between the two was a prescribed value per pound. It has been officially determined that this importation was in the class entitled to free entry, and no wrong whatever is imputed to the importer. I take it, if he had stated the value to be 4 cents per pound, which was that ascertained and fixed by the appraiser and reported to the collector, there would be no question that the merchandise would have been entitled to free entry.
However, the arguments presented to the Supreme Court in the Kimball case, and the ruling thereon, were such that 1 regard that case as controlling this. I would hope, however, that if this case were before that court the doctrine of the Kimball case would be disapproved.
*210 The'case of Saxonville Mills v. Russell, referred, to, is distinguishable from the case here, because there the importation was dutiable in any event.
In order, however, that what I regard as the flagrant injustice of this case be called to the attention of whomsoever may be interested therein, I recapitulate.
The entry papers claim the merchandise to be free of duty, citing T. D. 36667, title 6, which contains the statute allowing free entry to printing paper valued at not more than 5 cents per pound. Obviously the question of value per pound must be first passed upon by the appraiser. The statement in the entry that it was valued at more than 5 cents per pound, however it may be regarded, ought not to be deemed to control or defeat the claim that it was entitled to free entry, accompanied by a reference to the appropriate paragraph in the free list winch established that right.
This printing paper, if legally found to be valued at less than 5 cents per pound, was free of duty, and it has been so found. It seems clear that the provision in paragraph I, Section III, that duty should not be assessed in any case upon an amount less than the entered value can and should be held to relate only to merchandise that is in fact dutiable. This is not.
In any event, I see no justification for penalizing the importer in this case, -and no excuse for the United States Government to take duty upon merchandise which the lawmaking body has declared to be entitled to free entry.
However, while I am of opinion that in justice the judgment below should be affirmed, yet, by reason of what I regard as the controlling effect of the opinion of the Supreme Court, I feel constrained to and do concur.