dissenting.
This case is a retrial of the issue presented in Walter T. Ueland, Quong Yuen Shing & Co. v. United States, 27 C. C. P. A. (Customs) 56, C. A. D. 62. The parties are the same, except that Ueland does not appear as an appellant to this court. The merchandise in this case is identical with the merchandise in that case, except that it was a different importation.
In the Ueland case, supra, originally decided by this court November 28, 1938, (which opinion was not published owing to the fact that a rehearing was granted and the decision below affirmed because the members of this court were evenly divided) I dissented, and since that dissent was not published, I shall state in substance what I said there and in addition discuss other phases of the case not therein mentioned.
*51I can see no possible logical basis for the majority’s construction of paragraph 5. On the main question of interpreting the paragraph, while the majority state that they are giving it the meaning indicated by “the clear grammatical sense of the language used,” it is my opinion that the construction does not give the language used its plain meaning but that it is a strained and unjustified construction which produces an anomalous result and which, in my judgment, thwarts the purpose Congress had in mind when it inserted this provision in the Tariff Act of 1922 as the basket provision to take care of many chemicals and related products provided for in many different places in previous acts.
As I read the paragraph, it contains the following elements:
1. chemical elements
2. all chemical salts and compounds
3. all medicinal preparations
4. and all combinations and mixtures of any of the foregoing. Following these specific provisions', Congress added, “all the foregoing obtained naturally or artificially and not specially provided for.” The Tariff Commission explained why it was necessary to add “obtained naturally or artificially,” and we are not here concerned with that language. The language “all the foregoing * * * not specially provided for” means that if a chemical element is specially proyided for, it of course does not go into paragraph 5, and the same is true of the other three items. If the mixture is specially provided for, as a mixture, it does not go into the paragraph, but if not specially provided for, as a mixture, and it is a mixture of “any of the foregoing,” it falls within the paragraph.
The instant importation is admittedly a physical mixture of two chemical compounds, one of which is specially provided for under paragraph 81. The instant importation is a mixture, not specially provided for, which *bontains one “of the foregoing” and falls within the fourth provision, “all combinations and mixtures of any of” these. Since the mixture was not specially provided for elsewhere in the act, it was necessary for the collector to classify it either under paragraph 5 or under the nonenumerated paragraph, 1558.
The collector did, in the instant case, what he did in the Ueland case, supra, and in the North Coast Importing Co. case, supra, and what all the collectors throughout the United States have done (as far as I am advised) since paragraph 5 became the law in 1922. This exact issue was not presented in the North Coast Importing Co. case, but we there sustained the action of the collector in assessing the merchandise under paragraph 5. In fact, no argument had ever been presented to any court, so far as I know, that, if one chemical element was specially provided for, the mixture containing one or more chemical elements which were not provided for would be excluded from *52tbe paragraph, until that issue was presented in the case of United States v. Schenker’s, Inc., supra. Just how the majority can waive this decision aside so summarily is beyond my comprehension.
This exact point was presented to this court in 1928 in the Schenker’s case upon a protest which claimed the merchandise dutiable, as does the instant protest, as a nonenumerated manufactured article. This court there said:
Paragraph 5 provides for all chemical salts and compounds and all combinations and mixtures thereof not specially provided for, and the collector is presumed to have found that the merchandise here was either chemical salts or compounds, or a combination or mixture thereof.
Importer has tendered no proof that the importation is not as classified by the collector. It argues that the small quantities of sodium nitrite and sodium sulphate, aggregating 5.35 per centum, should be treated as negligible impurities and disregarded, claiming it is probable they occurred naturally in the importation. It also argues that as sodium chloride, sodium nitrite, and sodium sulphate are each eo nomine provided for in paragraph 83, and that paragraph 5 covers only the things therein named that are not specially provided for, the importation can not be classified under paragraph 5. [Italics quoted.]
We there expressly affirmed the collector's action in assessing the mixture, the components of which were specially provided for elsewhere, with duty under paragraph 5.
There is a second and very important feature of the decision by the majority in this case which I think is so patently erroneous as to require considerable discussion. This phase of the case relates to the doctrine of legislative approval of judicial construction. The majority have made some new law when they say the following:
If, in a case judicially decided, the construction of a statute is necessary, and that statute is thereafter reenacted without change, it is presumed that Congress was' aware of such judicial construction and approved the same. United States v. Kawahara, 15 Ct. Cust. Appls. 231, T. D. 42242.
I italicize the phrase, “If * * * the construction of a statute is-necessary.” The authority cited by the majority, the Kawahara case, does not hold that the doctrine does not apply if the decision was unnecessary, and I have looked at every decision I can find, by every court in this land, having any bearing upon this question, and in no instance has any court ever stated that the doctrine does not apply where a court construed the language under circumstances which did not require its construction. I have found no decision that refers to language used by a court in construing a statute before it as being obiter dictum. But if the construction were obiter, it would make no-more difference than if the decision was erroneous. If Congress can give its approval, in the manner stated, of a patently erroneous holding, it surely.can do the same with one that was not necessary to a disposal of the issues involved.
The majority hold that a case of legislative adoption of judicial construction would be made out here if the court had been justified *53in construing the paragraph in the Schenker’s case. The record in that case discloses that when the court heard the argument and decided the case, it had before it the protest claim of the importer that the merchandise was dutiable as a nonenumerated article. Before the court could go to the nonenumerated paragraph, it had to hold that the merchandise was not enumerated elsewhere. It was vitally necessary, therefore, for the court to determine that it was dutiable where it was assessed and, in doing so, it had to construe the paragraph. True enough, the court did not belabor the issue, which the majority here stress, no doubt for the reason that the plain language of the paragraph was all the answer necessary to the contention made by the importer there. It was the Government that appealed in that case, and unless the importer desired a lower rate of duty than that which the court had held applicable, it was not necessary for the importer to appeal and ask for a 20 per centum duty as a nonenumerated article. If this court had concluded that the assessment was wrong, it could have reversed the trial court and remanded the case so as to have brought about the proper assessment. United States v. Strauss & Co., 3 Ct. Cust. Appls. 180, T. D. 32464; United States v. Paramount Publix Corp., 22 C. C. P. A. (Customs) 452, T. D. 47453; United States v. Astra Bentwood Furniture Co., 25 C. C. P. A. (Customs) 340, T. D. 49434.
When the 1930 Tariff Act was passed, Congress had before it the Summary of Tariff Information, 1939, where, on page 53, the Tariff Commission, in discussing decisions relating to said paragraph 5, stated:
* * *. Pickling salt, composed of common salt 94.65 per cent sodium nitrite and sodium sulphate was held dutiable hereunder. With no proof to that effect, held error to conclude as matter of law that the sodium nitrite and sodium sulphate were not artificially mixed in the commodity but were found there naturally. (15 Ct. Cust. Appls. 460.) [Italics quoted.]
Congress was definitely told there that this court had, in the Schenker’s case, held pickling salt dutiable under said paragraph 5 of the Tariff Act of 1922. Congress, with this knowledge before it (although if the decision had not been called to its attention, it is presumed to have known of it) reenacted the same paragraph using language identical with that of the Tariff Act of 1922. Is it supposable that before Congress can be said to give its approval of judicial construction, the-framers of the law must wade through the decisions and holdings on the subject matter and determine precisely whether the court could have decided the case without construing the provision? To so conclude would be contrary to everything i understand about the doctrine.
Under the present majority decision (and the majority admit that it would be a clear case of legislative ratification of judicial holding .if the construction of the paragraph had been necessary in the Schen-*54leer’s case), litigants will hereafter tax their ingenuity to make it appear, in cases like the one at bar, that Congress, having been informed of a judicial holding, ignored said holding because it concluded, for some reason, that the court had no business construing the provision in the first place.
It is unfortunate that the Government did not cite the Schenker’s case until it did so in its petition for rehearing in the Ueland case, supra, and that it never did call our attention to the fact that that decision was pointed out to Congress when it enacted the Tariff Act of 1930. In the instant case, the Government’s counsel states that “whether Congress gave legislative approval to the holding in” the Schenker’s case “.is not particularly germane” and that “the decision controls here under the principle of stare decisis, rather than under the doctrine of legislative ratification.” I am glad that the majority did not express any approval of this unusual contention. I think both doctrines apply. The doctrine of legislative approval applies with compelling force in a case like the present one, regardless of whether or not that decision is stare decisis of the instant issue. It seems obvious to me that the failure of Government counsel to point out to the court that the Schenker’s case was called to the attention of Congress was due to this strange notion which counsel had with respect to the applicability of the two doctrines.
It is interesting to note that in the North Coast Importing Co. case, supra, merchandise which I assume was identical with that at bar was before the court, and the importer raised the question of legislative approval of long-continued administrative practice. This court, in an opinion by the same judge who speaks for the majority in the instant case, conceded that there had been, a long-continued administrative practice, but pointed out that on June 5, prior to the enactment of the Tariff Act on June 17, 1930, Congress had been informed by a published Treasury Decision, T. D. 44074, that this practice had been changed. Thereupon this court held that when Congress enacted the Tariff Act of 1930, it had in mind that merchandise like that involved there, and involved here, was dutiable under said paragraph 5 of the Tariff Act of 1930. We there said:
The Tariff Act of 1930 was enacted on June 17, 1930, and therefore it appears that Congress, before its enactment, presumptively had knowledge that the Treasury Department was of the opinion that merchandise of the character here involved should be classified under -paragraph 6 of the Tariff Act of 192%.
In view of this fact we do not think that it may be said that Congress, in enacting paragraph 5 of the Tariff Act of 1930, intended to recognize and affirm the administrative practice, which apparently had prevailed for many years, in classifying merchandise such as is here involved as a nonenumerated manufacture. [Italics mine.]
True enough, the issue pressed by the importer in that case involved the contention that a food product could not fall within said chemical *55paragraph 5, but we held there, and it was controlling of our decision, that when Congress enacted the paragraph it had before it the information that such merchandise was to be classified under paragraph 5. This is an additional reason why we should not now hold that the instant merchandise is not the kind of mixture provided for in the paragraph.
It seems to me that, even from the viewpoint of the majority, this is a proper place to make application of the principle announced in United States v. Basket Importing Co., 13 Ct. Cust. Appls. 98, T. D. 40941. There, upon reconsideration of an issue previously decided by the court and well understood and acquiesced in by all concerned, this court made the following observation:
If the question before the court, in the two cases above cited, were before us now, for the first time, under the present statement of facts, we might be inclined to give serious consideration to the contention that the words “not the separated fibers thereof” explained what Congress meant when it said “in' their natural state,” and that they did not intend to exclude from the paragraph manufactures of straw which were colored. These decisions have been followed by those administering recent tariff legislation, and Congress, in the manufactures of straw paragraph of the Tariff Act of 1922, has used language identical with that used in the paragraph relating to the same subject matter in the act of 1913, notwithstanding the decisions of this court.
Congress, by such reenactment, has given approval of the interpretation put upon the clause by this court. United States v. Post & Co., 3 Ct. Cust. Appls. 260, T. D. 32668.
If it was conceded that these decisions were erroneous, we believe it would be harmful rather, than helpful to make any change, at this time, in our former rulings on this question. The courts, and this court especially in passing upon close questions of construction in tariff legislation, have stressed the importance of uniformity of decision and of settled and well understood administrative practice. The persuasiveness of the fact that a position, technically more correct, might be arrived at by the consideration of fine distinctions when reviewed under a new statement of facts, must yield to the advantages to be derived by all parties concerned from a policy affecting the levying of customs duties, which is well understood and acquiesced in. Ulmann v. United States, 5 Ct. Cust. Appls. 367, T. D. 34551; United States v. Baruch, 223 U. S. 191; Goussios & Co. v. United States, 2 Ct. Cust. Appls, 317, T. D. 32051.
I regard the decision of the majority as a very important one, and I think the lower court, in very apt language, properly interpreted the paragraph and that the majority interpretation of it will lead inevitably to the destruction of the “mixtures” provision therein, since it will be an easy matter in most' instances to mix the products with some harmless chemical element or chemical compound so as to hereafter take advantage of the strained construction given to the paragraph by the majority. The Government’s brief points out that if the paragraph is construed as the majority construe it, mixtures containing sugar or mineral water (sugar and mineral water being specially provided for) would be excluded from the paragraph. It seems so clear as to require no further discussion, that Congress never in*56tended that the purpose of this important basket paragraph should be evaded in the manner suggested.
I think the decision appealed from should be affirmed.