DISSENTING OPINION
Bland, Judge:I cannot agree with the conclusion reached by the majority that upon this record rock candy is not shown to be a medicinal preparation. It is difficult to understand from the opinion the exact reasons for reaching the conclusion that the imported merchandise is not a medicinal preparation. The opinion does not attempt to define a medicinal preparation.
The weight of the evidence clearly shows that rock candy, at the time of taking the testimony, was chiefly used in connection with other things for relief of throat irritation. No witness said that it was not chiefly so used, nor did any witness state that rock candy was chiefly used for any other purpose. Some of the witnesses stated that it had no' therapeutic value. Some of them stated that it did have such value. Some of the witnesses also stated that syrup or sugar would accomplish the same purpose. There was credible evidence on this point to the contrary.
No definition of medicinal preparation .that I have found, in any of the decided cases requires that an ingredient chiefly used to cure *37ailments must necessarily cure tbem or must have therapeutic value. Surely, after reading all the authorities, no court would be willing to assert that medicinal preparations must necessarily have therapeutic value or cure the ailments aimed at.
This court in Smith & Son Manufacturing Co. v. United States, 15 Ct. Cust. Appls. 277, T. D. 42468, said:
The contention that these vaccines are not medicinal or similar substances finds no support in reason or in the authorities. They possess, or are believed to possess, curative or alleviating properties, and are so used and administered because of that fact.
So eminent a customs authority as the late Judge Laeombe, in Dodge & Olcott v. United States, 130 Fed. 624, defined a medicinal preparation for the purposes of that case as “something which is of use, or believed by the prescriber or user fairly and honestly to be of use, in curing or alleviating, or palliating or preventing, some disease or affection of the human frame.” The merchandise here is within this definition.
Obviously, Collectors of Customs cannot take the responsibility of determining whether or not every article chiefly used for the purpose of curing, preventing, or alleviating ailments has or has not therapeutic value or actually has the beneficial effect which it is believed to possess. Thousands of medicinal preparations, no doubt, have no curative properties whatever, but if the only use or chief use is as a medicine, they should be so classified. It is no answer to say that sugar or syrup will do the same thing rock candy will do. Sugar and syrup are not chiefly used for medicines. Upon this record we should hold that rock candy is chiefly so used. That whether or not a given substance is a medicinal preparation depends upon its chief use is so well settled as to call for no discussion here.
In view of the facts of record, I can only account for the conclusion reached by the majority upon the theory that using a material for curing throat trouble, which material does not have therapeutic qualities, is not regarded as being a medicinal use. I cannot agree that using a material to cure a throat is not a medicinal use, and if it is not a medicinal use, using a material with therapeutic qualities would not make it more of a medicinal use.
The importer in this case is entitled to know whether he lost it by virtue of the fact that the court was or was not of the opinion that the record showed it had no therapeutic qualities. The opinion should state the grounds upon which its conclusion is reached. In the opinion is the following statement: “* * * while rock candy may be used by some persons as parts of borne remedies, such uses were not medicinal and were not its chief ones.” The record affords no justification for this conclusion.
I think the question squarely put up to the court is: Is a single, unmixed ingredient, wholly or chiefly used, when combined with other things, to reheve throat irritations, to be regarded as a medicinal prep*38aration under paragraph 5 and dutiable at 25 per centum ad valorem, even though it be concluded that it possesses no therapeutic value. The answer to this question should be yes. The mere fact that it may at times be eaten or that it may be used with whisky to make “rock and rye” is immaterial as long as its chief use is shown to be for the purpose of curing throat troubles. If water were chiefly used to cure a malady, it should be regarded as medicinal.
Congress did not provide that medicinal preparations dutiable at 25 per centum under paragraph 5, Tariff Act of 1930, should have therapeutic value, and the fact that in drug paragraph 34 it mentioned therapeutic value seems to me to be significant.
It cannot be urged that rock candy is not a medicinal preparation because of the fact that it is used only in connection with something else. While the court does not say so in the majority opinion, it may be that this is the view entertained by the majority. Thousands of articles which are not classifiable as drugs but which are classified as medicinal preparations are imported by themselves but never used except in connection with something else. No supporting authority for this contention need be cited because no other conclusion, I respectfully submit, can logically be arrived at.