specially concurring.
I concur in everything that is said in the opinion except its reference to the failure of securing the permission of the Secretary of the Treasury, which should not be considered by this court since the matter was not raised below or presented here by any proper assignment of error.
I specially concur for the purpose of stating that I think the opinion should construe section 562 so as to be a guide when future controversial questions are raised. The opinion merely holds that section 562 was not intended by Congress to repeal or make inapplicable paragraph 813 and section 563. With this conclusion I fu’ly agree, but the reason which brings me to this conclusion (and, as far as I know, this reason is not questioned by my associates) is the fact that by a construction which I regard as logical and proper, the operation of all three controverted provisions may be given full effect without one having the tendency of nullifying the other.
The pertinent part of section 562 on “Manipulation in Warehouse" is that reading, “upon payment of the duties accruing thereon, in its condition and quantity, and at its weight, at the time of withdrawal from warehouse, with such additions to or deductions from the final appraised value as may be necessary by reason of change in condition.” The italicized portion is new language in the Tariff Act of 1930. In the Tariff Act of 1922 the provision read, “upon payment of the duties accruing thereon, in its condition at the time of withdrawal from ware-*30bouse.” [Italics mine.] Tbe words “and quantity, and at its weight” and the additional language were inserted into the 1930 act.
To me it seems simple why such amendment was made to the section applicable to manipulation in warehouse. Certain imported articles were permitted to be “cleaned, sorted, repacked, or otherwise changed in condition,” with the result that the dutiable quantity of the merchandise would be lessened or increased. For instance, wool— an importer thereof was privileged to remove the burr content and thus avoid payment of duty upon burrs, and therefore Congress provided for “in its * * * quantity, and at its weight” because it was not the purpose of Congress to require that the quantity or weight of the wool be taken as entered, since, in the condition in which it went into consumption, it was freed from considerable of its quantity and weight.
This thought leads to the suggestion that Congress had in mind saying nothing more than that goods which were “cleaned, sorted, repacked, or otherwise changed in condition” would, if the quantity or weight had changed by virtue of such repacking, cleaning, etc., be dutiable on the quantity as withdrawn. Concerning the said change in section 562 of the 1930 act from the language used in the 1922 act, the report of the House Committee on Ways and Means (Report No. 7 to accompany H. R. 2667) stated at page 183:
Section 562. Manipulation op Merchandise in Warehouse
H? H* * H* H* * *
The section in the present law provides that when merchandise is withdrawn from a manipulating warehouse for consumption, payment is.to be made of the duties accruing thereon “in its condition at the time of withdrawal.” Some uncertainty has arisen as to the intended scope of the word “condition” — that is, whether changes in quantity, in weight, and in value are to. be taken into consideration. Your committee believes that the section should be clarified in this respect and has proposed an amendment to provide that the duty shall be based upon the condition, quantity, and weight of the merchandise at the time of withdrawal from warehouse. It is further provided that the appraised value of the merchandise is to be adjusted to take account of changes in condition as a result of manipulation. [Italics supplied.]
Hs * ^ * * * *
The alleged warehouse manipulation of the instant importation- — ■ liquor — did not involve any reconditioning or repacking which changed its dutiable status or increased or decreased its quantity or weight. Only 528.6 gallons were repacked. The remaining quantity, 435.63 gallons, was not repacked or changed in quantity or weight. Section 562 would be warrant for the conclusion that if repacking of these goods changed their duitable status, or decreased or increased their quantity or weight, consideration might be given thereto.
In the face of the mandatory provisions of paragraph 813 and the language used in section 563, it seems obvious that Congress never, by section 562, intended the controversial provision to relate to anything *31except that which, had been actually “cleaned, sorted, repacked, or otherwise changed in condition.” In my mind, this construction of the provision of section 562 in no sense runs counter to the force and effect of the provisions of paragraph 813 and section 563.
For reasons before stated, I concur in the result reached by the majority.