*534CONCURRING OPINION.
Barber, Judge,concurring:
I' concur with the result reached by the court in this case. I do not, however, in all respects agree with the interpretation it places upon paragraph 477.
Assuming that a purpose, of the paragraph, as stated by the court, is “to favor the men’s black silk hat industry in this country and to supply it with an exceptionally cheap raw material consisting of a high grade of goods,” I think that purpose is accomplished by holding that such black plush articles, composed of silk, or of silk and cotton, as are commercially known in this country as hatter’s plush are entitled to the low rate of duty provided in the paragraph, if it also appears that they are of the character and standard exclusively used in the manufacture of men’s hats. If, however, at the time the law was enacted, or later, it-is found that such a commodity may be devoted to other purposes, it is also still entitled to the same benefit. In other words, I think the law is this: If such plush is the only kind used for making men’s black silk hats in this country it may be used for other purposes and still be dutiable under paragraph 477.
The construction given the paragraph by the court would, it seems, make it necessary that the importation should be devoted to the manufacture of men’s black silk hats only, which involves the further necessity of following each importation to' its ultimate use in manufacture in order to correctly determine the rate of duty. ■ - .
It is just as reasonable, I think, to suppose that Congress designed to protect any other industry which used this kind of plush as the silk-hat industry, and therefore that the language of the paragraph is descriptive of the plush and means plush of the kind that is used in the manufacture of men’s hats to the exclusion of other similar fabrics, and I see no reason why it is to be presumed that Congress intended to give the men’s hat industry a monopoly of importing the plush at the low rate of duty. Establishment of new industries might thereby be prevented, which, as I view it, is not the policy of .the law or the intent of Congress in the enactment of the paragraph in question.
The history of previous legislation on this subject and its interpretation by the Board of General Appraisers seems to • sustain the interpretation which I would give to the statute. •
Paragraph' 593 of the act of 1894 admitted to free entry—
593. Plush., black, known commercially as hatters’ plush, composed of silk, or of silk and cotton, and used exclusively for making men’s hats.
In T. D. 16577, the Board of General Appraisers had before it the interpretation of this paragraph. It held, and I think properly, *535that thereunder exclusive use was the test, and it appearing that the merchandise there involved was not exclusively used for making men’s hats, that it was Dot entitled to the benefit of free entry. See also T. D. 15825.
Paragraph 461 of the act of 1897 was made to read—
4G1. Plush., black, known commercially as hatters’ plush, composed of silk, or of silk and cotton, such as is used exclusively for making men’s hats, ten per centum ad' valorem,
and this identical language was preserved in the paragraph now before the court.
. In T. D. 25381, construing the paragraph of 1897, the Board of General Appraisers had before it goods invoiced as half silk plush. The case as reported does not show for what purpose the merchaD-.dise was imported. The hoard said the testimony showed that there were low grades of hatters’ plush that are not used exclusively for. making men’s hats, but that the importations involved were such plush as is exclusively used for making men’s hats and sustained the protest. ■ In other words, without any evidence as to the purpose for which the merchandise, was to be used the board held it fell within the class of that used exclusively for making men’s hats.
In T. D. 30791 the board again considered this paragraph. The merchandise was a black plush, concerning which the board said:
The testimony taken at the hearing shows that it is known commercially as hatters’ plush, and is such a plush, as is used for making men’s hats. .
The evidence further showed that the merchandise was used in making women’s hats in exceptional'cases, ■ In its conclusion the board used this language: ■
In the act of 1894, as well as in the act of 1890, Congress limited the provision to plushes known commercially as hatters’ plush and used exclusively for making men’s hats. We think it was the intention of Congress by thus changing the language of the paragraph to enlarge the provision so as to include within its terms such plush as is known commercially as hatters’ plush, and is recognized in the trade as a standard article which is used in the manufacture of men’s hats to the exclusion of other similar fabrics.
I think this indicates the true interpretation to be given to the paragraph under consideration. If Congress designed in the act of 1897 to limit the plush which was entitled to the low rate of duty to that which was to be exclusively devoted to the making of men’s hats it was unnecessary to change the language df paragraph 593 of the act of 1894J except to add the duty provision. Instead of doing this it used the language "such as is used,” and I think thereby, as the board said in its decision last above quoted, enlarged the provision.
The construction which this court now gives to the paragraph negatives such enlargement and construes the same as if it read, *536“and exclusively Used/’ or “if exclusively used,” either of which expressions would be precise and apt language required to warrant the construction now given it, and neither of which is used.
I do not lose sight of the fact that in the decision of the board last above referred to it also said that because the plush was used on rare occasions for other purposes it was not thereby excluded from the classification given to it. But this language does not diminish the force of their reasoning as to the effect of the paragraph and was doubtless induced by the facts in that particular case.
In its decision in the case at bar the board again reiterated its former conclusion that “to bring the merchandise within the provisions of the paragraph it must be shown that tbe article is commercially known as hatters’ plush and is recognized in the trade as a standard article which is used in the manufacture of men’s hats to, the exclusion of other similar fabrics.” Congress will be presumed to have retained in the present act the language of the paragraph in the act of 1897 in view of the foregoing interpretation.
One of the arguments set forth in the Government’s brief in this case is here quoted:
‘ Experience has shown that it is impracticable to follow imported merchandise into consumption for the purpose of fixing the rate of duty it shall pay; that is to say, to postpone the final ascertainment of the duty until the merchandise has been consumed. Nothing was more natural than that a change in the statute should be made, which, while restricting the privilege of entry at 10-per cent to black hatters’ plush used in the men’s silk-hat industry, clarified the statute by ridding it of a condition that was impossible or impracticable of performance. In other words, the effect of the change was to substitute for proof that a given consignment of plush was actually used, or to be used, in the manufacture of men’s hats, proof that the plush was of the same kind or quality or fitness of plush that was selected by the makers of men’s hats for their purpose; or, putting it in another way, that the plush was “such as is used exclusively for making men’s hats.” This last quoted phrase undoubtedly fixes a standard of use by which to classify for duty black hatters’" plush, and the determination-of whether or not a plush is of this standard necessarily involves consideration of its character, quality, and fitness for the making of men's hats.
Men’s silk hats are made only of certain grades of plush, and these grades, and the character and quality they imply, are well established and known in the trade. If, as appellant urges, paragraph 477 is satisfied if the plush be black hatters’ plush, why were the legislators so particular to specify “such as is used exclusively for making men’s hats?” Why should this restriction be inserted, if the intention was to include plush used for women’s, misses’, and children’s hats as well? The statute definitely says for making men’s hats, and this is a fairly clear indication of an intent to include only the plush that possesses the necessary characteristics, quality, and fitness for that purpose, and to exclude all plush which does not possess these necessary properties.
■ The above, as I understand, is the gist of the Government’s main contention and is also in accord with the views I hold as above expressed as to the interpretation of the statute.
In its opinion I think the court goes further than the Government contends- and further than the decision of the case requires. The *537opinion seems to lose sight altogether of the fact that by the use of ftjSíMírórds “such as” Congress designedly enlarged the paragraph which, before these words were inserted, made ultimate use the test, and which, in its quoted argument, the Government concedes' was impossible or impracticable of performance. By the use of the quoted words, as the Government also contends, the statute was enlargedto include all plush which is of the standard, character, quality, and fitness for the making of men’s hats. In other words, the majority opinion gives no force whatever to the words “such as,” which to my mind must be given a descriptive effect and.were used in the sense of the kind that is used, or else be held meaningless.
Therefore, while I concur, as stated, in the decision of the court for the reason that the evidence fails to establish that the merchandise ..involved is of. the character that is used in the manufacture of men’s hats to the exclusion of other similar fabrics, nevertheless I feel constrained to dissent in this manner from the interpretation which the court gives to the paragraph and which I think is misleading and may be embarrassing in the future.