DISSENTING OPINION
Bland, Judge:Paragraph 1565 reads as follows:
Pae. 1565-. Cyanide: Potassium cyanide, sodium cyanide, all cyanide salts and cyanide mixtures, combinations, and compounds containing cyanide, not specially provided for. [Italics mine.]
Congress may not have known much about cyanide when it prepared this paragraph, but it certainly did evidence a desire to include •all cyanide substances. It was particular to include certain named cyanides as well as cyanide mixtures, combinations, and compounds containing cyanide.
Mr. Justice Brown asked Mr. McSorley the following question:
You think if the paragraph did not contain the words “compounds containing cyanide” its meaning would not differ?
and the witness answered:
Of course, I am not responsible for the wording of this paragraph.
Mr. Justice Brown further asked:
Do you think if the words “compounds containing cyanide” were stricken out that would not affect the meaning of the paragraph?
The witness replied he did not think it would.
The witness, whose construction of the paragraph this court has adopted, did not hesitate to say that Congress did a vain and senseless *347thing. Under the circumstances of this case neither this court nor any other court is privileged to take this attitude.
In Clark v. Barnard, 108 U. S. 436, 460, the court said:
It would have been, upon an assumption, a vain and senseless thing, and however private persons may be sometimes supposed to act improvidently, we are not to put such constructions, when it is legally possible -to avoid them, upon the deliberate and solemn acts and transactions of a sovereign power, acting through the forms of legislation.
See United States v. Irving Massin & Bros., 16 Ct. Cust. Appls. 19, 21, T. D. 42714, and United States v. Post Fish Co., 13 Ct. Cust. Appls. 155.
The testimony of the expert witnesses is substantially as set out in the majority opinion. Their testimony is to the effect that copper sidphocyanide contains no cyanide as such; that cyanide ingredients or cyanogen gas went into the making of copper cyanide, but that in the making of copper sulphocyanide the cyanides existing in the component materials were changed by chemical action to a point where cyanides as such, and technically speaking, did not exist. The expert witnesses said that when CuCN was combined with S (for sulphur) that the characteristics of the same were changed entirely and that it was no longer a cyanide. The conclusion of the witnesses is to the effect that, strictly speaking, there is no such thing as a cjmnide existing by itself nor is there a chemical combination which can contain cyanide. They agree there may be a sulphur cyanide or a copper cyanide but that there is no cyanide without its combination with some other ingredient.
In United States v. Pfaltz & Bauer (Inc.) et al., 16 Ct. Cust. Appls. 358, T. D. 43091, in trying to arrive at the intent of Congress in its tariff treatment of aluminum and the scope to be covered by the phrase “alloys of any kind in which aluminum is the component material of chief value,” this court held that alsimin was such an .alloy although in determining the component of chief value it was necessary to determine the value of the materials at the time when the several components were put together. The importer insisted that when the components were put together no aluminum as such was used, but that bauxite ore was added to carbon and silicon and that, therefore, at the time.of assembly aluminum was not a component.
This court took a broader view of the case than the importer desired and held that, regardless of whether bauxite was aluminum or contained aluminum, it did contain the materials- from which aluminum metal was derived and that Congress necessarily intended to include this kind of product (alsimin) in the quoted phrase. To have indulged in the technical refinements in that case which are insisted upon in this would have resulted in a different conclusion.
*348In arriving at tbe intention of Congress in reference to classification under tariff acts, such technical meaning as is ascribed by the majority to the word “containing” is never favored, if the same results in rendering futile and purposeless expressions in the act or if incongruous and illogical results flow therefrom.
In United States v. R. C. Boeckel & Co., 221 Fed. 885, 889, the court in construing the word “contain,” which occurred in the Pure Food Act with reference to confectionery which would be deemed adulterated if it contained terra alba, barytes, tale, etc., and where the proof showed that the confectionery contained a mere trace of talc detected only by chemical examination, the court said:
It is also to be noted that in section 7 the word “ contain,” taken in connection with the words “terra alba, barytes, talc, chrome yellow,” “color,” “flavor,”' “ vinous, malt and spirituous liquors,” is used in a general and not in a restricted’ sense, and that confectionery may be found to contain any of the prohibited substances if they are used as a compound, a filler, a flavor, a pigment to color it internally or externally, a coating, or other similar purpose, and especially if they are purposely used, even in minute quantities, for these or other similar purposes.
Now, giving the witnesses full credit for knowing and truthfully telling all about the subject which was necessary for our decision of this case, and giving their testimony full weight, the question before the court is, Did Congress by the very carefully worded free-list paragraph intend to include therein a copper sulphocyanide which is listed with the cyanides in the authorities referring to the same and which is made substantially of a cyanide ingredient?
If the majority opinion is right, then no one could have answered Mr. Justice Brown’s questions in any other way than in the way Mr. McSorley answered them. In the view of the majority, “compounds' containing cyanide” added nothing to the language used, because if it was a simple compound in which the original ingredients maintained their separate identities, it would be no more than a'combination or a mixture. Strohmeyer & Arpe Co. v. United States, 2 Ct. Cust. Appls. 285, T. D. 32035.
It follows that, if by the words “compounds containing cyanide” Congress meant mixtures or combinations containing cyanide as such, then the use of such term was purposeless and confusing and Mr. McSorley was right in his conclusion that the legislature wrote into the paragraph a purposeless expression.
The term “compounds containing cyanide,” in my judgment, was meant to include just such merchandise as this, even though the cyanide that went into it, and which was its most essential component, might not have been in its original condition when imported. Cyanide went into the compound and it is not suggested that it ever came out of it, and it seems logical to conclude, therefore, that it was contained therein in some form at the time of importation.
*349No one connected with this case has been able to answer Mr. Justice Brown’s questions in any other way than the manner in which McSorley answered them, and until there is a logical, reasonable answer forthcoming, explaining the use of this term by the legislature, I think the court should not give the word “containing” such a meaning as is given in the majority opinion.
To deny copper sulphocyanide free classification under paragraph 1565 is not justified by the context of the paragraph and the history of the cyanide legislation. The judgment of the court below should have been affirmed.