DISSENTING OPINION.
BARBER, Judge, with whom concurs Smith, Judge,dissenting:
The merchandise in this case is commonly known as rosin, was imported from London, England, in barrels, and entered at the port of Chicago early in 1910. We understand it was produced in France. It was assessed for duty under paragraph 20 of the tariff act of August 5, 1909, at the rate of one-fourth of 1 cent per pound and 10 per cent ad valorem in addition. It was claimed to be entitled to free entry under paragraph 559 of the same act. Other claims are made in the protest, but are not relied upon here.
- Just' how the rosin of this importation was made the evidence does not disclose. From what is termed “Collective Exhibit 1,” which was received without objection by the board, it appears that rosin is produced in France in the following manner:
The raw rosin or “gemme” (gum of trees) is harvested in pots placed near the lower part of incisions made in seaside pinés.
This matter, which contains a certain proportion of water and impurities, such as wood shavings, pine needles, and insects, is brought in barrels to the works, which are located near the place of production.
Such works consist of boilers, used for the purpose of melting the “gemme” (gum of trees) in order to remove therefrom all the impurities contained therein, and of stills (alembics) of various systems for extracting by means of distillation the oil of turpentine which the “gemme” (gum of trees or resin) contains. The residuum left from said distillation leaves then the still (alembic), passes through sieves and forms the so-called colophony or rosin (“Brai”).
Its color is clear during the first months of the harvest, April, May and June, and it becomes dark during the end of the campaign in the months of October and November.
The colophony is thereupon placed in barrels of'pine wood which contain, in general, 3 to 400 kilograms of matter.
*499Both, the importer and the Government introduced evidence tending to show that in the southern part of the United States rosin is produced in the following manner: Incisions are made in the trunks of certain species of pine trees, the sap flowing therefrom is caught in receptacles at the foot of the tree, at intervals these receptacles are emptied, the sap therein put into barrels- and transported to and placed in stills which often are from 25 to 100 miles away from the trées. As placed in the stills this sap contains dirt, chips, leaves, and pine needles. The sap in this condition is subjected to a process of distillation, as a result of which there passes from it a vapor which is conducted through pipes submerged in cold water, resulting in a condensation of the vapor which then becomes fluid turpentine or oil of turpentine. After the distillation is accomplished the residuum in the retort of the still is of a consistency similar to ordinary molasses and is unstrained rosin. If it is sold in this condition it is allowed to flow from the still into a vat and from there dipped into barrels in which it is sold and shipped. These barrels contain about 280 pounds of the product. This is the unstrained.rosin of commerce. If it is to be sold as strained rosin it is while hot strained by passing it through three separate wire strainers or screens, the first of- coarse mesh, the second finer, and the third finer still, and over the last strainer are placed several layers of cotton or cotton batting which are designed to remove- all impurities and to produce pure rosin. This product is the strained rosin' of commerce and is classified and graded as to its color, the lightest color commanding the highest price. The importation here is one of the highest of these grades and is ready without any further treatment to be devoted to the purposes for which pure rosin is used. The-sap as it comes from the trees, strictly speaking, is oleoresin, but is perhaps more commonly known as crude turpentine.
The purpose and result of the straining process as before described is to remove the dirt, chips, leaves, and other impurities and to make pure rosin. The color is dependent upon various things, amongst them the degree of heat used in distillation, the time of year when the oleoresin is taken from the tree, the age of the tree from which it is taken, and the care with which it is strained. The more, completely all impurities are removed the lighter the color of the rosin, and if too much heat is applied in the process of distillation it tends to darken the color of the rosin product.
It appears that at the port of Chicago from some time in 1888 until some time in October, 1909, merchandise similar to the rosin' in this •case was admitted to entry free of duty as a gum resin under the paragraphs of previous tariff laws which related to the samé articles referred to in paragraph 559 below quoted, and that a soáj) manufacturer doing business at Philadelphia imported it in the four or five *500years prior to April, 1910, also free of duty, but where his importations were made does not otherwise appear.
We insert here paragraphs 20 and 559, respectively, of the tariff act of August 5, 1909:
20. Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulbous roots, excrescences, fruits, flowers, dried fibers, dried insects, grains, gums and gum resin, herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly for dyeing or tanning; any of the foregoing which are natural and uncompounded drugs and not edible, and not specially provided for in this section, 'but which are advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture, one-fourth of one cent per pound, and in addition thereto ten per centum ad valorem: Provided, That no article containing alcohol, or in the preparation of which alcohol is used, shall be classified for duty under this paragraph.
559. Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulbous foots excrescences,.'fruits, flowers, dried fibers, dried insects, grains, gums, gum resin, herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds ’ (aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly for dyeing or tanning; any of the foregoing which are natural and uncompounded drugs and not edible and not specially provided for in this section, and are in a crude state, not advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending- manufacture: Provided, That no article containing alcohol, or in the preparation of which alcohol is used, shall be admitted free of duty under this paragraph.
Paragraph 20 of the act of July 24, 1897., which is the immediate predecessor of paragraph 20 above quoted, instead of the words £<but which are advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture,” contained these words,- “which are advanced in value or condition by refining, grinding, or other process.” Paragraph 548 of the act of 1897, which is the immediate .predecessor of paragraph 559 above quoted, contained the words “in a crude state and not advanced in value or condition by refining, grinding, or other process,” instead of the words, “in a crude state, not advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture,” and these changes in ■ the respective paragraphs are the only ones material to consider in the disposition of this case, but it may be observed that provisions similar to those of the act of 1897 are found in the corresponding paragraphs as far back as 1883.
Under the provisions of the respective paragraphs prior to the act of 1890, there had been much litigation and with the result, as we view it, that no general principle could be deduced therefrom which might be applied in the classification of merchandise seemingly covered by the paragraphs.
*501To illustrate:-The juice which exuded from the papaw melon, after it had coagulated in small lumps thereon, was scraped from the melon, spread upon a board with another board over it, then subjected to a sort of grinding process by which the lumps were reduced to powder,' in which condition it was imported, was held not to be entitled to free entry as a crude drug. United States v. American Ferment Co. (108 Fed. Rep., 802). Cassia flowers, pulverized, but in what manner not appearing, received the same classification. (T. D. 22653.) So also as to ginseng root, cleansed (T. D. 24883). And likewise as to dyewood, known as fustic, which had been cut into chips (T. D. 17172).
On the other hand, in United States v. Godwin (91 Fed. Rep., 753), juice of the papaw melon, caught in pans, dried in the sun, and sifted to take out foreign substances, in which resulting condition it was not fit for medicine, but from which medicine was prepared, was held free of duty. The same treatment was accorded to Guaraña paste made from the seeds of paullinia sorbilis, produced 'by shelling the seeds, moistening them in water, removing a papery film, and then pounding them and adding water to reduce the substance to a semi-liquid consistency, it appearing that this was the crudest form in which the article was imported. Cowl v. United States (124 Fed. Rep., 475). And in T. D. 27162 Canada balsam, which after it had been drawn from the tree was submitted to a straining process for the purpose of eliminating therefrom bits of sticks, bark, chips, and dirt, was also given free entry. The board in this decision, referring to a prior case, said:
The board would construe the words “advanced in value by refining, grinding, or other process,” to mean advanced in value beyond the crudest form known to commerce. There may be exceptions, but it would seem to be the rule that an article is crude when it is in the crudest form.known to commerce. There must be some starting point for the advancing process.
Other decisions upon this subject, illustrating the point, may be found in Notes on Tariff Revision (pp. 30 and 31, 703 and 704), all of which were before Congress for consideration prior to the enactment of the tariff act of 1909.
We think it was undoubtedly the intention of Congress in revising these paragraphs to substitute for the varying interpretations of the word "crude” a certain fixed test, or standard, of its own, by which liability to or exemption from duty should be determined, and to make it impossible that one test which had theretofore been applied should be whether or not the merchandise was in the crudest form in which it had been customary to import the same.
This new test would seem to require that the article should be a natural and uncompounded drug, not edible. If such a drug is advanced in value or condition by any process or treatment whatever *502beyond that essential to its proper packing and the prevention of decay or deterioration pending manufacture it is dutiable under paragraph 20. If, on the other hand, such natural and uncompounded drugs, not edible, are in a crude state, not advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing and the prevention of decay or deterioration thereof pending manufacture, they are entitled to free entry.
The importer contends in substance as follows: That this importation is a crude article; that the processes to whichit has been subjected before importation are only such as are necessary to prevent deterioration pending manufacture, which he says should be applied to the particular manufacture for which the merchandise is designed; that an article may be used for some purposes for which its fitness for use will be in nowise dependent upon its. purity; that on the other hand it may be used for other purposes for which its usefulness and value will be largely deteriorated if it is not free from impurities before being packed for shipment; that it was not the intent of Congress that drugs should be injured for one purpose because the treatment applied to prevent them from injury might be unnecessary when they were used for other purposes, and flatly declares that—
The uncontradicted testimony in this case is that if the rosin after separation from the spirits of turpentine is not strained so as to remove the dirt, chips, leaves, and other substances it will during the process of transportation become darker in color and therefore be of a lower grade in quality and price and less suitable for the use of the soap manufacturer.
The corollary to his position, as stated, would seem to be this: If it should appear that rosin before being strained and purified was found to be an article of commerce and a. crude drug and as such entitled to free entry under paragraph 559, if imported for purposes to which it could be used in that condition, that, nevertheless, when it appeared that an importation was designed, to be devoted to some purpose for which it could not be used in that condition, in the latter case it should, nevertheless, be entitled to free entry, although it had been purified like the importation at bar. In other words, the question of whether an article was entitled to free entry as a drug under paragraph 559 would be made to depend upon the use to which it was to be applied.
The record in this case is absolutely barren of any fact or suggestion that tends to show that the importation was made for the purposes of making soap, or that it was imported for any particular purpose or destined for any special use, and therefore, tested by his own claim, if it shall be found that the unstrained, unpurified rosin is a subject of commerce, the importer, it would seem, ought not to prevail in this case.
*503As to his claim that the uncontradicted testimony in the case shows as above stated, an examination of the record satisfies us that it cannot be maintained. We think the evidence establishes beyond question that thousands of barrels of unstrained rosin ■ are annually brought from southern ports of this country to New York and elsewhere and kept in its unstrained condition for months in the original barrels in which it was shipped without any deterioration whatever. Its selling price is not thereby decreased, and witnesses for the importer as well as for the Government agree in saying that the real obj ect in straining the rosin is to enhance the value of the product. In addition to this it might almost seem to be common knowledge that the presence of chips, leaves, dirt, or other foreign substances would be unlikely to change the color of the solid rosin which surrounds such refuse matter.
The board did not find that the rosin deteriorated pending manufacture if it was not strained, as claimed by the importer, but con-; tented itself by holding that the rosin in this case, which, as already stated, has been classified and graded as to color and is one of the highest grades commanding the highest prices and ready without any further treatment to be devoted to- the purposes to which pure rosin is used, was a natural and uncompounded drug in a crude state not advanced in value by any process whatever.
We proceed, therefore, to consider whether in any event this rosin is within the class of natural uncompounded drugs in a crude state not advanced in value or condition by any process whatever within the meaning of the paragraph. It surely is not in its natural state because as it exists in nature it is held in solution in the oil of turpentine from which it is separated by distillation. The processes of nature cannot separate the two and preserve both and artificial processes must be' resorted to in order to accomplish that result. . If the oleoresin, the crude turpentine, be exposed to the air long enough doubtless the volatile oil of turpentine would all disappear, but the residuum would be unstrained, ungraded, and impure rosin. To produce from that residuum the importation here, if it could be produced therefrom, it, would be necessary to melt, strain, and grade it.
Without entering into any exhaustive discussion of the meaning of the word “crude” as used in paragraph 559, it may be observed that this word in its ordinary sense and as applicable to its use in the paragraph means a thing in a raw or unprepared state, not fitted for use by cooking, manufacture, or the like and not altered, refined, or prepared by any artificial process. See Century Dictionary.
We are unable to see how the importation here answers the call of this definition. It has been artificially produced, it has been subjected to artificial heat, melted, purified, and graded and these processes have been resorted to for the purpose of producing and have *504produced an article prepared for a use by artificial means from an article that in its natural state could not be used for the purpose to which it may now be devoted. These processes have designedly been applied to produce these results and to enhance the value of the product.
If the- importation is in a crude state, not advanced in value or condition by any process or treatment whatever beyond that essential to prevent deterioration pending manufacture within the meaning of paragraph 559 and thereby entitled to free entry, we see no escape from the conclusion that no rosin can be imported which should not receive a like favor. It' might, we think, with much force be claimed that the crude turpentine answered to the requirements of the paragraph under consideration or that the unstrained resin remaining after the processes of distillation had been employed was such an article, but that may not be necessary to decide here.
Both the foregoing articles are in large quantities the subject of trade and commerce in this country, one of the Government’s witnesses alone shipping from southern ports over 1,000 barrels of the former and another 50,000 barrels of the latter annually. But it is urged that the first appearance of rosin as a separate article of commerce is after the oleoresin has been subjected to the processes of distillation and that because when the rosin first so appears it contains chips, dirt, leaves, and other impurities; that the removal of the same therefrom by the straining processes and the contemporaneous grading of the rosin product does not deprive the graded rosin of its character as a crude article within the meaning of the paragraph. In other words, it is said that the rosin which first appears after the distillation of the oleoresin is a crude product whether strained of unstrained and whether graded or ungraded.
What we have already said indicates that this contention can not be upheld, and in addition thereto it may be observed that every article named as a drug in paragraph 559 appears to be a substance as found in a state of nature and not a thing or substance produced by any process of distillation or other processes whatever. To illustrate: The words barks, beans, berries., balsams, insects, leaves, lichens, mosses, etc., therein used all indicate a thing which is a natural product and ordinarily when obtained in their crude state would require no treatment whatever except drying or shaping to prepare them for shipment or to preserve them from deterioration or decay pending manufacture. They would not, it seems, require to be classified, purified, or graded for that purpose.
This view of the law makes it unnecessary to consider claims of the importer as to the effect of the classification of this merchandise at Chicago or elsewhere, as above stated.
We hold the rosin in this case is not entitled to free entry under paragraph 559 and in our opinion the judgment of the Board of General Appraisers should be reversed.