*159DISSENTING OPINION
Hatfield, Judge:I regret that I am unable to concur in the views expressed by a majority of my associates.
Artificial flowers, composed in chief value of textile yarns, threads, and filaments, were assessed for duty as “trimmings” and “ornaments” at 90 per centum ad valorem under paragraph 1430 of the Tariff Act of 1922.
It is claimed by appellant that they are properly dutiable under paragraph 1419.
The statutes involved are as follows:
Pae. 1430. Laces, lace window curtains, burnt-out laces and embroideries capable of conversion into burnt-out laces, nets and nettings, embroidered or otherwise, veils, veilings, flouncings, all-overs, neck rufflings, flutings, quillings, rucliings, tucldngs, insertings, galloons, edgings, trimmings, fringes, gimps, ornaments; braids, loom woven and ornamented in the process of weaving, or made by hand, or on any braid machine, knitting machine, or lace machine; and all fabrics and articles composed in any part, however small, of any of the foregoing fabrics or articles; all the foregoing, finished or unfinished (except materials and articles provided for in paragraphs 920, 1006, 1404, 1406, and 1424 of this Act), by whatever name known and to whatever use applied, and whether or not named, described, or provided for elsewhere in this Act, when composed wholly or in chief value of yarns, threads, filaments', tinsel wire, lame, bullions, metal threads, beads, bugles, spangles, or products of cellulose provided for in paragraph 1213 of this Act, 90 per centum ad valorem; * * *.
Pae. 1419. * * * artificial or ornamental fruits, vegetables, grains, leaves, flowers, and stems or parts thereof, of whatever material composed, not specially provided for, 60 per centum ad valorem; * * * boas, boutonniéres, wreaths, and all articles not specially provided for, composed wholly or in chief value of any of the * * * flowers, leaves, or other material herein mentioned, 60 centum ad valorem: * * *.
It is not denied that merchandise of the character of that here involved was before this court in the case of Blumenthal & Co. v. United States, 14 Ct. Cust. Appls. 17, T. D. 41531. In that case it was held that as those artificial flowers were suitable for use and were used as “trimmings and ornaments for hats, corsages, fur pieces, and ladies’ coats” they were dutiable under paragraph 1430. In reaching this conclusion the court said:
Consequently, if relative specificity could be held to be determinative of the competition between the two paragraphs here involved, there would be no legal alternative left except to subject the merchandise to the duty of 60 per cent ad valorem as prescribed by paragraph 1419. The rule that an eo nomine designation must be preferred where goods are within the terms of two or more paragraphs carrying different rates of duty can not, however, be applied in this case without ignoring the manifest intention of Congress clearly and unmistakably expressed in paragraph 1430. That paragraph provides that trimmings and ornaments by whatever name known and to whatever use applied whether or not named, described or provided for elsewhere in the act, shall be subjected to a duty of *16090 per cení ad valorem. By that language Congress left no doubt as to its intention, and, consequently, rules of construction or interpretation can not be invoked to give to the statute a meaning other than that which its terms clearly and plainly import.
In concluding the opinion, we said:
As Congress has seen fit to direct in unmistakable terms that the duty imposed by paragraph 1430 shall be imposed on all trimmings and ornaments made of textile threads, yarns, or filaments, regardless of any other provisions of the act, we must yield to the legislative will so plainly expressed and hold that the importations are dutiable as assessed, notwithstanding their enumeration in paragraph 1419.
The term “trimming” is defined by the lexicographers as follows:
Trimming, n. 1. Something added for ornament or to give a finished appearance or effect; that which embellishes or completes: (1) Material attached to a garment, etc., for ornamentation or effect. — Funk & Wagnalls New Standard Dictionary.
Trimming, n. 3. Anything used for decoration or finish; an ornamental fitting of any sort: .* * *. — The Century Dictionary and Cyclopedia.
Trimming, n. 2. That which serves to trim, make complete, ornament, or the like; esp., necessary or ornamental fittings or appendages, as of a garment; * * *. — Webster’s New International Dictionary.
The term “ornament” is defined as follows:
Ornament, n. 1. A part or an addition that contributes to the beauty or elegance of a thing; an embellishment; adornment; * * *. — Funk & Wag-nalls New Standard Dictionary.
Ornament, n. 1. Any accessory, adjunct, or trapping that serves for use or for both use and adornment, * * *.
2. Something added as an embellishment; that which embellishes or adorns; whatever lends or is intended to lend grace or beauty to that to which it is added or belongs, as a jewel, a rhetorical embellishment, etc. — The Century Dictionary and Cyclopedia.
Ornament, n. 2. That which is added to embellish or adorn; * * *.— Webster’s New International Dictionary.
The record in the Blumenthal case, supra, was made a part of the record in the case at bar.
The evidence in this case establishes without contradiction that the involved artificial flowers are used for the purpose of ornamenting and trimming hats and other articles of wearing apparel. That they come within the dictionary definitions of the terms “trimmings” and “ornaments” is not denied. Counsel for appellant recognizing this to be true, sought, by offering testimony in addition to that in the record in the Blumenthal case, supra, to prove that in the trade and commerce of the United States the terms “trimmings” and “ornaments” are so restricted in meaning and scope as to exclude artificial flowers.
It is argued by counsel for appellant, and concurred in by a majority of my associates, that the additional testimony in this case *161establishes that the meaning of the terms "trimmings” and "ornaments” is so restricted and limited as to exclude artificial flowers.
In the opinion of my learned associate, Judge Lenroot, it is held that artificial flowers are excluded from the meaning and scope of the terms “trimmings” and "ornaments” by virtue of proof of commercial designation. It will be observed that the writer of that opinion studiously avoids any discussion or holding that the proof is of such character as to warrant a finding that the dictionary definitions of these terms are erroneous.
My learned associate, Judge Bland, concurs in the conclusion reached in the opinion of Judge Lenroot, because, as he says:
* * * I am convinced from the record and the various recognized authoritative definitions of the words “trimmings” and “ornaments” that, both commonly and commercially, artificial flowers are not included within the term, and that Congress did not use the words “trimmings” and “ornaments” in the broad sense as meaning anything that trims or ornaments.
In the tariff sense, “trimmings” and “ornaments,” commonly and commercially, are specific things. Artificial flowers is another class of specific things. The history of the artificial flower paragraph shows this to be true.
The phrase “by whatever name known,” which has been held to preclude the proof of commercial designation, could only preclude the proof of commercial designation being controlling, if the words “trimmings” and “ornaments” actually covered the merchandise involved; that is, if the importation was, in fact, not “trimmings” or “ornaments,” there could be no possible opportunity for the operation of the phrase.
In my opinion, proof of commercial designation is incompetent to restrict the scope and meaning of the terms of paragraph 1430. Kotzin Bros. et al. v. United States, 14 Ct. Cust. Appls. 99, T. D. 41589. Assuming, however, for the purpose of this opinion, that such proof is competent, I desire to invite attention to the well-established rules pertaining thereto. It is elementary that, while tariff statutes are drafted in the language of commerce, it will be presumed, in the absence of evidence to the contrary, that the common and commercial meanings of tariff terms are the same. Furthermore, the burden is upon those who assert that a tariff term has a restricted meaning in the trade and commerce of the United States to prove that fact by a preponderance of the evidence. It has been held repeatedly by the Supreme Court of the United States, and by this court, that, before commercial designation can be held to have been established, it must appear that at and prior to the enactment of the statute in question the term therein employed had a particular meaning in the trade and commerce of the United States different from its common meaning, and that such meaning was definite, uniform, and general throughout the trade and commerce of the United States. And it must further appear that, by virtue of such particular meaning, the merchandise *162involved is excluded from the common meaning of such term. Rice Millers Association, American Manufacturers v. United States and Oberle (Inc.), 15 Ct. Cust. Appls. 355, T. D. 42560, and cases therein cited.
The rule, well stated in the case of Acker v. United States, 1 Ct. Cust. Appls. 328, T. D. 31431, is quoted in the opinion of Judge Lenroot. The court there said:
The further requisite, however, is necessary in assigning to a phrase a commercial limitation or application that it must be proven not alone that the imported merchandise is riot classed therewithin, but there must be assigned by proof to that phrase a scope and meaning which is clearly, definitely, and uniformly understood throughout the United States which includes some other merchandise and excludes the imported merchandise. Clafflin v. Robertson; 38 Fed. Rep. 92; Sidenberg v. Robertson, 41 Fed. Rep. 763. It likewise must be shown in such cases that such meaning of the phrase in trade and commerce should differ from the ordinary dictionary meaning or that of common speech. Maddock v. Magone, 152 U. S. 368. (Italics mine.)
The rule is again accurately and concisely stated by Graham, P. J., in the case of Jas. Akeroyd & Co. et al. v. United States, 15 Ct. Cust. Appls. 440, T. D. 42641, where it was said:
Such testimony, of course, amounts to no more than an expression of the individual opinion of the person giving it and does not, to any degree, amount to proof of commercial designation. If, under our holding in the Chicago Wool Co. case, supra, proof of commercial designation may be permitted in respect to the meaning of the language of said paragraph 1102, which question is not here involved, such proof must be, under the authorities, that at and before the time of the enactment of the Tariff Act of 198® the term “wool in the scoured stale” had a definite, uniform, and general meaning in the trade and commerce of the country, other than its ordinary meaning; this proof may then be followed by proof showing what such meaning was, and that the wool in question was not included therein. United States v. Kwong Yuen Shing, 1 Ct. Cust. Appls. 14, T.. D. 30773; United States v. Wells Fargo & Co., 1 Ct. Cust. Appls. 158, T. D. 31211; United States v Solomon, 1 Ct. Cust. Appls. 246, T. D. 31277; Maine Central R. R. Co. v. United States, 14 Ct. Cust. Appls. 411, T. D. 42054. (Italics mine.)
These principles have been announced in so many cases that there ought not be any misunderstanding concerning them. They mean, if I have any comprehension of them, that, in order to establish commercial designation, it must be shown by a preponderance of the evidence that the trade and commerce of the United States has definitely, uniformly, and generally given a meaning to a particular tariff term that is different from its common meaning; and that certain articles are included within, and other articles are excluded from, the trade meaning or understanding of the tariff term in question. It is not sufficient to establish, only, that certain merchandise is included within, or is excluded from, as the case may be, a certain tariff term. On the contrary the rule requires that the particular-trade meaning must be established. Having established such meaning, I ani sure that, in a vast majority of the cases, it would be clear *163to the court whether the articles in question were, or were not, excluded from the tariff term, and it would not be necessary, as an aid to the court, to require a witness to state the obvious. Applying these well-settled rules to the evidence in the case at bar, it seems clear to me that appellant has failed to make a case.
In the opinion of my associate, Judge Lenroot, certain testimony is set out, and it is upon this testimony that it is claimed that proof of commercial designation has been established. I have considered the record with the greatest of care and I am satisfied that the quoted testimony is the strongest in^the record upon this phase of the case.
. The witness Joseph Englander testified that he knew the trade meaning of the word “trimmings.” He was then shown a number of articles, among them being motifs, passementeries, and medallions; he stated that these articles were included within the trade understanding of the terms “trimmings” and “ornaments.” Furthermore, he referred to “yokes” and said that “baby yokes may be used as a trimming.” Each of these articles is used, as a “trimming” or “ornament,” and it is apparent to me, from the testimony of the witness, that, because they are used as such, the trade understands them to be “ trimmings ” or “ornaments.” Furthermore,, each of these articles is within the common meaning of those terms, as. defined in the dictionaries.
The witness Charles T. Riotte supplemented the testimony of the witness Englander by saying, in substance, that artificial flowers are excluded commercially from the terms “trimmings” and “ornaments.”
The witness Joseph Mittelmark supplemented the testimony of the witnesses Englander and Riotte by saying that “trimmings” and “ornaments” are a special kind of merchandise and are dealt in as such; and that artificial flowers are a separate and distinct class of merchandise.
The witness Charles E. Turk said that he was engaged in the “trimmings and ornaments trade”; he supplemented the testimony of the witnesses above referred to by saying that the “artificial-flower business” is separate and distinct from his line of business.
The witnesses did not venture to give a trade d efinition or meaning of the terms “trimmings” and “ornaments.” Had they done so, I am sure that the court would have been competent to say whether artificial flowers were, or were not, excluded from the statutory terms. The evidence in this case is precisely what the court said in the Acker and Akeroyd cases, supra, was not sufficient to prove commercial designation. The witnesses said that artificial flowers are excluded from the terms “trimmings”' and “ornaments.” Why are they excluded? What is the trade meaning of “trimmings” and “ornaments” upon which such testimony is based? The answer is *164obvious. There is no evidence of any restricted trade meaning. I might say at this point that if the majority of the court had agreed to the application of the rules of commercial designation as applied in the opinion of my esteemed associate, Judge Lenroot (which, however, is not the case), the entire structure upon which commercial designation was originally established, and upon which it has stood for many many years, would have been destroyed, and all of the decisions based upon those rules over the many years of customs litigation would have been reversed. In that unfortunate event all that it would be necessary to prove in order to establish commercial designation is that certain articles are included by the trade within a tariff term and that the merchandise involved in a certain case is excluded therefrom. I most vigorously assert that this is not and never has been the law.
Fortunately, my esteemed associate, Judge Bland, bases his concurring opinion, as I understand it, upon the common meaning of the tariff terms “trimmings” and “'ornaments,” and upon the legislative history of the statute covering artificial flowers.’ In view of the fact that it requires the two opinions to reverse the court below, I must express my views with reference to the matters set out in the concurring opinion.
With reference to the legislative history, I find it only necessary to say that, while artificial flowers have been separately classified since the year 1792, there has been no legislation upon the subject since our decision in the Blumenfhal case, sufra. Furthermore, paragraph 1430, as pointed out in the Blumenfhal case, provides that “trimmings” and “ornaments” shall be dutiable under that paragraph, regardless of the names by which they may be known, and whether or not provided for elsewhere. Accordingly, it is of no consequence that artificial flowers are provided for in paragraph 1419, if they are, in fact, covered by the provisions for “trimmings” and “ornaments” in paragraph 1430. While, in view of what has been said in the Blumenfhal case, it is not of great importance, it might be mentioned here that the provision-in paragraph 1419 for artificial flowers is followed by the language “not specially provided for.” So much for the legislative history.
Much of what I have heretofore said pertaining to commercial designation applies with equal force to the claim that the record establishes a common meaning for the terms “trimmings” and “ornaments” which differs from the dictionary definitions. I might repeat, however, that the witnesses have failed to give any definition or meaning of these terms; it is obvious, therefore, that there is no evidence in the record of their common meaning. Furthermore, in the case of Jas. Akeroyd & Co., supra, we said:
*165This court has already construed paragraph 1102 in the Chicago Wool Co. case, supra, and has stated what, in its judgment, the common meaning of the term '‘wool in the scoured state” is; that matter, therefore, thus becomes stare decisis, and proof of the common meaning of the term, a§ in the case at bar, can not effect a change in that construction.
Again, in the case of United States v. Ben Felsenthal & Co. et al., 16 Ct. Cust. Appls. 15, T. D. 42713, we said:
We think it well settled that where a court of competent jurisdiction settles and judicially defines the common meaning of a term used in the statute, such a determination and adjudication becomes matter of law. In Marvel v. Merrit, 116 U. S. 11, Mr. Justice Mathews said:
The words used are not technical, either as having a special sense by commercial usage, nor as having a scientific meaning different from their popular meaning. They are the words of common speech, and, as such, their interpretation is within the judicial knowledge, and, therefore, matter of law.
* * * * * * *
This court has followed the same rule and when, as a matter of law, it has once determined the common meaning of a term used in a statute, has adhered to such common meaning until a legislative change in the statutory enactment in question has necessitated a changed determination of such meaning.
This court determined the common meaning of the terms “trimmings” and “ornaments” in the Blumenthal case, supra, and there held that the common meaning of those terms was in accordance with the-dictionary definitions. Applying the rule announced in the ATceroyd and Felsenthal cases, supra, to the case at bar, it must be held that the question of the common meaning of the terms “trimmings” and “ornaments” is stare decisis.
I am not now attempting to suggest that paragraph 1430 includes all articles used as ornaments or trimmings. It may be that the Congress intended to limit the scope of this paragraph to millinery trimmings and ornaments, or to such as were used upon wearing apparel. If the opinion in the Blumenthal case is read with care, it will be observed that the decision was not extended to include artificial flowers other than those used as “trimmings” or “ornaments for hats, corsages, fur pieces, and ladies’ coats.” However, the artificial flowers in question could not be excluded from paragraph 1430 even under such a construction, because of. the fact that the record establishes that they are used for so-called millinery purposes.
For the reasons stated I have found it necessary to dissent from the views expressed by the majority of the court. In my opinion the judgment below should be affirmed.
Graham, P. J., concurs in the dissenting opinion.