DISSENTING OPINION
Bland, Judge:I must respectfully dissent from the conclusion reached by my associates.
It would seem that there should be no dispute about the proposition that for the merchandise at bar to be dutiable under paragraph 363 as swords, the articles must in fact be swords; that is, they must be swords in fact before the phrase “irrespective of quality or use” can apply. I take the position that toy swords are not swords within the meaning of the paragraph.
The opinion of the majority would seem to indicate that even if the goods were toy swords, they would be dutiable under the sword paragraph by reason of the use of the words “irrespective of quality or use.” The following paragraph would indicate that it is the view of the majority that if it were conceded on every hand that the article at bar is a cheap, flimsy, toy sword, that, merely because it is called a sword, is sufficient to carry it into the sword paragraph, since Congress saw fit to use the term “irrespective of quality or use”:
This being true, it will be at once apparent that it is entirely immaterial how the articles of importation here are used. An article, to be a toy under the provision, “all other toys,” in said paragraph 1414, must be such because of its use. Illfelder v. United States, 1 Ct. Cust. Appls. 109, T. D. 31115. If the use is made immaterial by statute, then it follows that swords can not be taken out of the sword paragraph and put into the toy paragraph because of their use.
Paragraph 363 to my way of thinking should mean that if an importation is a sword, it does not make any difference whether it is of poor quality or whether it is used for ornament or dress, it goes in the paragraph, but the framers of the act, of course, did not mean to draw toy swords out of the toy paragraph where they are dutiable at 70 per centum and make them dutiable at 50 per, centum along with Damascus steel blades and various kinds of real swords.
It may be contended that the record before us does not show that the articles involved herein are toy swords. It is hardly fair to the litigants to turn this case upon the proposition that these are not shown to be cheap toys. They are invoiced as “toys, Japanese swords,” valued at 25 cents each.
The importer called as a witness Mr. M. M. Muffin, appraiser at the port of Los Angeles, who stated that the merchandise was “two *112hundred pieces of toy Japanese swords, at 25 cents each.” Appellee’s counsel asked him the question:
Q. They were returned as swords to be used by children in play?
to which he answered in the affirmative. Mr. Neville, attorney for the importer, appellee, then said:
I will concede that they are used by children in play.
The court below found them to be toy swords with wooden or tin blades and stated: “The swords in the case at bar are conceded to be toys.” Notwithstanding the fact that they were conceded to be toys, the court below seemed to be of the opinion that since the thing that characterized a toy was'its use, and since the statute provided “irrespective of * * * use,” a toy sword came within the sword paragraph. The case was tried in the court below and here on the theory that they were toy swords, and the record, in my judgment, shows that they were toy swords. If they were toy swords they were not swords within the meaning of the sword paragraph.
The case of Morimura Bros. v. United States, 165 Fed. 64, is cited in the majority opinion. In that case the articles were curios, bone swords. The lower court held them not to be swords within the meaning of paragraph 154 of the act then under consideration. Congress subsequently added to the sword paragraph the phrase “irrespective of quality or use.” It did so after its attention had been called to the decision in the Morimura Bros. case, supra, by the Notes on Tariff Revision, which said in part:
* * * Of course, it is not urged that a piece of paper, for instance, cut into the shape of a sword should be classified as a sword, but the articles subject of this decision are in truth and fact swords and the circumstances that they are to be used as decorations is of no weight, for that is practically the only use to which swords are put to nowadays * * *.
Note that the writer of the Notes on Tariff Revision told Congress that the bone swords were in fact swords, and no doubt they were and probably at some time had been used in combat but had ceased to be used for that purpose and were then curios. To my mind this shows that Congress, by inserting the phrase in the paragraph meant that a sword, if in fact it was a sword, should be dutiable under the sword paragraph, even if it was put upon the wall as an ornament or used as a curio. But I feel sure that it did not intend to invade the toy paragraph and bring into the sword paragraph things which in their very nature do not respond to the term “sword.”
We have held in United States v. B. Illfelder & Co., 17 C. C. P. A. (Customs) 197, T. D. 43646, that toy picture machines were not picture machines within the meaning of the optical-instrument paragraph, and in United States v. Wanamaker, 15 Ct. Cust. Appls. 310, T. D. 42485, that toy steam engines were not engines within the meaning of the steam-engine paragraph.
*113If they are not picture machines or steam engines because they are toys, then the articles at bar, which unquestionably are toys, are not swords. If they are not swords, the special provision added by Congress to the paragraph has no application whatever.
It must be remembered that these articles were classified by the collector as toys, which carries with it the presumption that he found their use to be that of a toy, and unless the importer has shown that they are not toys, they must, for the purposes of our consideration, be regarded as toys.
The judgment of the lower court should be reversed.
Garrett, J., joins in the foregoing dissent.