DISSENTING OPINION
Garrett, P. J., and Lenroot, J.,dissenting.
As we understand the majority opinion, it is held that the phrase “* * * towels, other than pile fabrics, * * *” should be treated as if it read “towels, other than pile fabric towels.” This, we take it, is the equivalent, in a legal sense, of the holding of the trial court that the phrase should be treated “as if reading ‘towels, other than those of pile weave construction.’ ”
This reads into paragraph 911 (a) of the Tariff Act of 1930 language not inserted therein by the Congress. The reason assigned for interpolating such language is, in substance, that by so doing an anomalous situation will be avoided.
The majority opinion states:
It long has been settled by many judicial decisions, construing various tariff acts, that the term “fabrics” ordinarily means cloth, or material, not further manufactured * * *, and that articles composed of such cloth, or material, are distinguished, for tariff purposes, from the cloth, or material itself.
This rule is one of such long standing and is so well known that we deem it unnecessary to cite the cases in which it has been applied. We have been unable to find any case in which an exception to it has been made. Not only have the courts sustained and applied it, but the Congress itself has recognized it — indeed, the Congress originated it — and has applied it (uniformly so far as we can determine) in different tariff acts extending over a long period. It is clearly recognized in various of the paragraphs included in the different textile schedules of the Tariff Act of 1930.
It is clear that if the term “fabrics,” as it appears in paragraph 911 (a) be given the meaning so long given it by the Congress and the courts as it has appeared in other tariff acts and in other paragraphs of the present act, the contention of the importer here must be sustained. We think the majority opinion virtually concedes this *288and that it is agreed that it cannot be held otherwise except by reading language into the paragraph.
While courts may, by interpretation, sometimes read language into a statute in order to carry out the legislative intent, this may be done only where such legislative intent clearly appears.
As stated in Lewis’ Sutherland Statutory Construction, second edition, vol. II, section 382:
* * * But the practice of reading words into a statute is one to be exercised with caution, and should only be indulged when the omission is palpable and the omitted word clearly indicated by the context. * * *
In the case at bar, while it is possible that Congress had the intent ascribed to it in the majority opinion in the enactment of paragraph 911 (a), it is equally possible that Congress merely intended to exclude from such paragraph towels made or cut from pile fabrics which are provided for in paragraph 909.
Indeed, the latter possible construction would seem to be the more reasonable, for in the cotton towel provision of the Tariff Act of 1922 in paragraph 912 terry-woven towels such as those here involved were expressly excluded from its provisions. This exclusion is .not contained in paragraph 911 (a) here under consideration, and it is elementary that ordinarily a change of language in a legislative act signifies a change in intent.
At any rate, it seems clear to us that where there are two reasonable theories of congressional intent, this court is not at liberty to adopt one of them, based wholly upon speculation.
Therefore, it seems to us that the construction given by the majority is in the nature of “judicial legislation,” and we are unable to agree to its propriety. ■ We fear that it establishes a precedent that may arise, in many instances, to plague those charged with the duty of administering the customs laws, and the courts as well.
It was suggested during the argument of the case that the phraseology used by Congress may have been used inadvertently. That it seems to us can only rest upon surmise, but even if such was the case, and even if an anomalous situation has resulted, the remedy for it lies with the legislative branch of the Government. We, therefore, respectfully dissent.