DISSENTING OPINION.
Barber, Judge:I feel constrained to dissent from the majority opinion of the court in this case.
The merchandise is scissors — just common, ordinary scissors — upon the blades of which were etched the words “Board of Education”; in *61other respects they are not different from the scissors in common, ordinary, everyday use by a majority of people. They were assessed for duty under paragraph 152 of the act of 1909, the material part of which is as follows:
152. * * * Scissors and shears and blades for the same, finished or unfinished # * • *
They are claimed by the importers to be entitled to free entry under paragraph 650, set forth in the main opinion, and the board so held.
The assignment of errors alleges, among other things, that the board erred “in not affirming the assessment of duty herein.”
In its brief the Government ai'gues the question of whether the merchandise is dutiable .under paragraph 650, contenting itself upon the question as to whether the scissors are eo nomine provided for under paragraph 152, with the statement that the assessment was under such eo nomine provision.
The importers do not brief the case further than to say that the decision rests upon the authority of T. D. 24902, referred to in the majority opinion, to which Treasury decision reference is made for the argument. Importers also claim that decision has since been uniformly followed by the board and indorsed by this court in United States v. Wyman (2 Ct. Cust. Appls., 440; T. D. 32200).
The opinion of the Board of General Appraisers in the case at bar is so short that I quote all thereof that is material:
According to the testimony and the appraiser’s notation upon the invoice, each pair of scissors had stamped upon it “Board of Education,” and the testimony states that the scissors are for the use of the Board of Education of New York City in teaching sewing in the public .schools of that city. * * * The regulations of the Secretary of the Treasury have been complied with. * * *
The board then referred to said T. D. 24902 apparently as authority for sustaining the protest. There was no finding that these scissors were philosophical or scientific instruments, no finding that the teaching of sewing was in any sense a science, and no allusion whatever to the fact that the scissors were eo nomine within the provision of paragraph 152.
For convenience I quote all the evidence showing the use made of these scissors:
Q. Do you know to what use these scissors are put? — A. They are sent to the different schools for the sewing classes, and use some in domestic science.
Q. Used for any other purpose except that? — A. No, sir.
Q. That is, to teach children how to sew? — A. Yes, sir.
Omitting for the present any consideration of whether these scissors are philosophical or scientific instruments within paragraph 650, I think this case should be disposed of upon the familiar and well settled rule that the designation of an article eo nomine for duty, or as exempt from duty, must prevail over words of general descrip*62tion which might otherwise include an article specially designated. Chew Hing Lung v. Wise (176 U. S., 156).
To such rule this court has necessarily and properly committed itself and has adhered thereto.
In Goussios v. United States (2 Ct. Cust. Appls., 317; T. D. 32051) the rule was applied in favor of the term " olives ” in various named containers and packages in a dutiable paragraph in competition with the provision for fruits or berries, green, ripe, or dried, or fruits in brine in a free-entry paragraph. See also United States v. Haaker (4 Ct. Cust. Appls., 471; T. D. 33884). And there are many others of like import.
I think that rule is applicable here.
Scissors are eo nomine provided for in paragraph 152. Paragraph 650 makes no eo nomine provision other than as found in the words "philosophical and scientific apparatus, utensils, instruments, and preparations, including bottles and boxes containing the same.” In other words it names a class, all of which must he either philosophical or scientific and in which scissors are not named, while paragraph 152 specifically names scissors. The case closely resembles Chew Hing Lung v. Wise, supra.
I think upon this ground alone the action of' the collector should have been upheld and that this court should reverse the board
The majority opinion, however, places its decision upon an assumed rule suggested in substance by the board in T. D. 24902, "that the actual use for which the article was in fact imported” is the proper test. This'rule is then said to go so far as to permit in certain cases the assessment, as philosophical or scientific instruments, of dish pans and garbage pails, and other utensils used in teaching cooking and housework. It is also held that there has been a Congressional and administrative adoption of this rule.
I feel constrained to briefly state a few of the many reasons why I can not concur therein.
The board did not unqualifiedly adopt the rule above stated in T. D. 24902. It said in that case:
It is not intended that this should comprehend those articles of ordinary furniture and equipment which are used not only in schools and colleges but in offices and business houses as well, hut only such as are especially appropriate in philosophical or scientific investigation, research, demonstration, or instruction.
I do not think it can be demonstrated that these scissors are especially appropriate within the meaning of the above-quoted language. The obvious use to be made of them is to cut patterns or cloth or cut off threads. I doubt if the record shows they are used for any purpose within the meaning of paragraph 650.
The statement that the rules laid down by the board were adopted by the Government must be taken with a grain of allowance.
*63The adoption was in this wise: The rules of the board were quoted. It was said that since their promulgation the board had held that weaving looms, a four-wheeled searchlight tower, drafting tables, furniture, and similar articles, though imported by educational institutions, were not within the paragraph. The interpretation placed upon the board’s decision was then set forth in the language hereafter quoted, which clearly shows the extent of its adoption. It was said:
While it may he true that the power drill is intended for use in educational work and instruction, it is of the same status as a plow or other farm implement when imported by an agricultural college, machinery when imported'by a textile school, or typewriters, calculating machines, etc., when imported by a business college. While such articles may be useful and necessary for the purposes of instruction in such schools, so also are desks, chairs, and similar articles, which, while used for educational purposes, are not necessary or especially appropriate for scientific or philosophical investigation, research, demonstration, or instruction. (T. D. 32289.)
Until the present case, so far as I am advised, the board has never understood its rules of construction to cover scissors or like articles. It has held lead 'pencils, pens, and other articles of like nature were not philosophical or scientific apparatus, utensils, or instruments. Abstract 24898 (T. D. 31335), decided February 21, 1911, which is, of course, a date later than T. D. 24902.
No court has sustained the rules suggested by the board. The Treasury Department has not adopted them in the sense of the majority opinion. How it can be said, in view of this, that Congress by reenacting the paragraph has approved the construction adopted by the court is more than I can understand. Thereby the words “philosopical and scientific” are really construed out of it, while Congress has uniformly kept them there, obviously for some purpose.
That Congress has supposed the term “philosophical and scientific” had a meaning when used in a similar connection is demonstrated by the fact that in paragraph 714 of the'act of 1909 the term “philosophical and scientific apparatus” is used to describe merchandise that under certain circumstances is entitled to free entry. This term has been employed in like connection and manner as far back as 1890 and is so used in paragraph 653 of the act of 1913.
Language is to be construed in the light of the common understanding as to its meaning, unless a different commercial designation be shown, which is not here.
The result of the majority opinion is that scissors are philosophical or scientific instruments within the meaning of paragraph 650. I do not hesitate to say that in common understanding the language there employed does not warrant that result.'
Use is not made the first test by the paragraph. If the articles are within the language employed to describe them, that is, if they are philosophical or scientific (and are not eo nomine elsewhere provided *64for), then, if it is shown they are to be devoted to the statutory uses they are entitled under regulations to be prescribed by the Secretary of the Treasury to free entry.
I think it is both unnecessary and inadvisable to attempt to establish any set of rules for classification of merchandise under paragraph 650. Whether an instrument is philosophical or scientific may well be left for conclusion upon the facts in each particular case and the determination may require evidence, as was held by the Supreme Court in the Oelschlaeger case, referred to in the main opinion. Some instruments may be determined to be philosophical or scientific upon an inspection thereof; others, such as the common simple tools, implements, and utensils in everyday use by large numbers of people, the principle of whose operation is commonly understood, may well, of judicial cognizance, be said not to be either philosophical or scientific, while as to the class between “sufficient unto the day is the evil thereof.”
In United States v. Presbyterian Hospital (71 Fed., 866) the Circuit Court of Appeals held that the term “scientific instrument” suggested “something other than a mere mechanical tool or appliance, however peculiarly adapted to use it may be in scientific labors.”
In the Circuit Court (see In re Massachusetts General Hospital, 95 Fed., 973), among other things, it was said:
An ordinary knife is a mechanical instrument, because its principal use is in the trades and arts, while a surgeon’s knife, especially designed for surgery, and principally used for such purpose, is a scientific instrument.
I am unable to see wherein the case of United States v. Wyman (2 Ct. Cust. Appls., 440; T. D. 32200) is at variance with the conclusion I reach in this case. The merchandise there was an iron cylinder containing liquid sulphurous acid' which maintained the liquid form only when under tremendous pressure and became gas when the pressure was removed. The acid was used for scientific purposes and the iron cylinder or some other similar container was indispensable. The contents of the cylinder were sufficient to last the University of Kansas, for which it was imported, for several years. The liquid acid could not be transferred to another container without difficulty and its sudden release might cause an explosion. Under these circumstances it was held that the container and its contents were scientific apparatus within the meaning of the paragraph.
It is, however, an altogether different thing to say that common scissors are a scientific or philosophical instrument. The term apparatus does not fit such scissors, and the word “scientific” is wholly inapplicable thereto.
I would reverse the judgment of the Board of General Appraisers.