concurring:
It is my view that all of the facts of importance in this case have been stated in the majority opinion, and I concur in all that is said therein.
Some reference is made in the dissenting opinion to the fact that in determining the issue in a case of this character it is the duty of the court to use common sense and common understanding. The observation is not a new one, but in order to be legally applicable it should be compatible with well-established principles of law.
In my opinion the Government has wholly failed to prove that the term “kumquat” is not within the common meaning of the term “orange.” No witness testified as to the difference between the commercial meaning and the common meaning of the term “orange.” If any of them knew such difference, they did not so state nor were they interrogated on that point. The mere fact that a species of orange is known as “kumquat” does not take that species out of the common meaning of the term “orange” any more than an orange, which is generally known as the “Valencia,” is taken out of the common meaning of the term “orange.” The proof necessary to establish commercial designation has been accepted not only by this court but by every other court throughout the history of tariff legislation.
The statement is made in the dissenting opinion by my esteemed associate, Judge Bland, that tangerines, for example, are not included in the commercial designation of the term “orange.” It may be observed, however, that, according to the lexicographers, tangerines are a species of orange.
In the case of United States v. Wilfred Schade & Co., 16 Ct. Cust. Appls. 366, 371, T. D. 43092, this court, without dissenting views from any member, made the following statement:
Without intending to give a comprehensive definition of the rule, it may be said, however, that, if an article is not within the common meaning of a tariff term, in order to bring it within that term by proof of commercial designation, where such proof is limited, as it is here, to the trade term by which the article is bought and *55sold, it must be shown by a preponderance of the evidence that it was bought and sold or known in the trade and commerce of the United States, uniformly, definitely, and generally by the term contained in the statute. United States v. Walter, 4 Ct. Cust. Appls. 95, T. D. 33371; Seligmann v. United States, 6 Ct. Cust. Appls. 85, T. D. 35336; Hampton, Jr. & Co. v. United States, 12 Ct. Cust. Appls. 490, 496, T. D. 40695.
If, however, an article is within the common meaning of a tariff term, that is, if it is a species embraced by the generic tariff term, the mere fact that it was not known in the trade by the precise tariff term would not affect its classification. United States v. Motor Car Equipment Co., 3 Ct. Cust. Appls. 77, T. D. 32355; Witcombe, McCeachin & Co. et al. v. United States, 12 Ct. Cust. Appls. 84, T. D. 40022, and cases cited therein; United States v. Lilly & Co. and Parke, Davis & Co., 14 Ct. Cust. Appls. 332, T. D. 41970.
For tbe reasons stated, I most heartily concur in the views expressed in the majority opinion.