specially concurring.
I concur in the result.
The majority opinion simply holds that the combined radio-phonograph automatic recoicl changer unit involved is not provided for or *46described in paragraph 1542 and that since it is stipulated as being of the character of articles mentioned in the third provision of paragraph 353, being a part of an article having as an essential feature an electrical element, it naturally falls therein without any necessity of considering the competitiveness of the two paragraphs involved.
The majority is mistaken in holding that the instant merchandise is not a part of an article similar to those eo nomine provided for in paragraph 1542. The gist of the majority opinion in this respect is that it is more than a phonograph. Of course it is. It is not claimed that it comes in under any of the specifically named articles but that it is described by the provision, “and similar articles, and parts thereof.”
A radio and a phonograph are similar in many respects to the articles named. See United States v. R. W. Cramer & Co., 21 C. C. P. A. (Customs) 379, 382, T. D. 46911, citing United States v. Massin, 16 Ct. Cust. Appls. 19, T. D. 42714. In the latter case this court quoted the following definition of “similar”:
Similar, a. 1. Nearly corresponding; resembling in many respects; somewhat like; bearing a general likeness.
If a combination radio-phonograph does not resemble or is not similar to the articles named in this paragraph, I can conceive of nothing that could have been meant by the expression, “similar articles” — all sound-producing, all in the same art, all necessarily manufactured and produced in the same places. If it were not for paragraph 353, why should not a radio-phonograph combination be classified in paragraph 1542?
My view in this respect is abundantly, and I think overwhelmingly, supported by a consideration of the legislative history of the provision.
When the Tariff Act of 1930 was being considered, the Tariff Commission submitted for the consideration of Congress a Summary of Tariff Information. At page 2111, vol. 2, the Tariff Commission gave Congress information with respect to paragraph 1542, which, with the exception of the term “dictaphones” (added by the Senate Finance Committee), is identical with the Tariff Act of 1922. In fact, the same general provision, “and similar articles,” has been in all predecessor paragraphs in all tariff acts for half a century. After quoting the paragraph, the following is stated:
PHONOGRAPHS, GRAMOPHONES, ETC.
Description and uses. — Phonographs, gramophones, and graphophones are instruments for recording or reproducing speech, music, and other sounds. The term phonograph has virtually replaced the other names in current usage. Combination phonograph and radio sets are also being produced.
Production.- — -The principal producing States are New Jersey, Connecticut, Michigan and Illinois. The large increase in production in 1927 over 1925 was caused in part by the number of combination phonograph and radio sets that were *47produced. Switzerland, Germany, and the United Kingdom are the chief centers of foreign production. Statistics of domestic production of phonographs, including dictating machines and combination phonograph and radio sets, follow: * * * [Italics mine.]
Following the table stowing the statistics of domestic production, we find the following:
Imports. — Assembled phonographs, gramophones, and similar articles were not reported separately in import statistics prior to September 22, 1922. The chief sources of imports for 1927 were Germany, Switzerland, and the United Kingdom. In 1927 imports of phonographs and similar articles were negligible as compared with domestic production. The low unit value of imports of phonographs and similar articles ($0,563 in 1927) compared with the unit value of domestic production (about $47 in 1927) indicates that the types imported are not comparable with the domestic production. Import Statistics follow: * * * [Italics mine.]
From the foregoing, it would seem clear that Congress was told that paragraph 1542 at that time covered articles and parts of articles like that at bar.
We simply should not ignore such pertinent legislative history, and I have not the slightest doubt that many combination articles which do not contain electrical elements to bring them within paragraph 353 are provided for as “similar articles” in paragraph 1542.
Having concluded that the instant merchandise is described in both competing paragraphs, where should it be classified?
That brings us back to some of the cases where the sole issue presented was one of specificity.
It will be noticed that both provisions contain the phrase, “and not specially provided for,” and under our holdings in numerous cases under such circumstances both provisions should be ignored. United States v. Richardson, 13 Ct. Cust. Appls. 280, T. D. 41214; United States v. Lo Curto & Funk, 17 C. C. P. A. (Customs) 19, T. D. 43319; United States v. S. S. Perry, 25 C. C. P. A. (Customs) 282, T. D. 49395.
The pertinent provision of paragraph 353 has been held not to be a designation by use, but if it were a designation by use and therefore, under certain decisions, more specific than an eo nomine provision or a provision for “similar articles,” it would make no difference. It is my view that in determining what falls within paragraph 353 the question of relative specificity is not a proper consideration.
In United States v. Dryden Rubber Co., 22 C. C. P. A. (Customs) 51, T. D. 47050, we stated, with reference to a rubber-cutting machine, the following:
In view of the very evident intent of the Congress to gather, generally, various types of electrical devices into this paragraph, it is believed that this machine, if essentially an electrical machine, may properly be considered as of the class to which the stated language of the paragraph refers.
We also there stated that the case of Coxhead Corp. v. United States, 22 C. C. P. A. (Customs) 96, T. D. 47080, which was handed down *48concurrently therewith, “is in harmony with the views herein expressed.”
In the Coxhead case, which involved an electrically operated calculating machine, we exhaustively reviewed the legislative history to which the opinion in the Dryden case referred and set it out at great length, particularly the reports of the Senate and House committees which reported the bill which became the Tariff Act of 1930, and arrived at the conclusion that in conformity with the intent of Congress we should hold that regardless of how specifically a machine or device was named in another paragraph of the tariff act (unless other considerations not present here prevailed) the said paragraph should be invaded and the articles therein named should be drawn into the electrical paragraph, 353-, if the article contained, as an essential feature, an electrical element. As was stated in the Coxhead case, Congress stated in effect that paragraph 353 was a new provision to make a uniform rate of duty upon all articles of this character no matter where they were found in the statute unless more commanding language was used in the invaded paragraph than prevails here or in the machine paragraph.
It is noted that in the hollow-ware paragraph, 339, which provides specifically for certain table, household, kitchen and hospital utensils, etc., there is the added provision, “the foregoing rates shall apply to the foregoing articles whether or not containing electrical heating-elements as constituent parts thereof.” The duties are higher than in paragraph 353. It is probable (I have not made a complete examination) that other paragraphs likewise contain similar provisions to that found in 339.
In the case of United States v. R. W. Cramer & Co., 22 C. C. P. A. (Customs) 45, T. D. 47049, we held, upon legislative history, that it was not the purpose of Congress in enacting paragraph 353 to rob the clock paragraph of electrical equipment and that therefore the issue of relative specificity was pertinent and important. That is not the situation at bar. There is nothing in the legislative history or in paragraph 1542 itself to indicate that Congress, in the enactment of paragraph 353, did not intend to invade that particular paragraph.
Why should not an electrically operated phonograph or a similar article, under the circumstances above recited, be taken out of the phonograph paragraph, even though eo nomine provided for, and brought into the electrical paragraph where a uniform rate of duty upon such electrical devices was provided for?
I wonder what the majority would have done if they had found that the combined instrument at bar was similar to a phonograph. Both provisions contain not specially provided for clauses; one provides for a phonograph and the other for an article. I suppose since the portion of paragraph 353 involved is not a designation by use (and we have so *49held) that an electrically operated phonograph or a part of it would be more specifically covered in paragraph 1542 than by the provisions in paragraph 353. Therefore, the court would hold that a phonograph would be held dutiable under 1542 at 30 per centum ad valorem, but if it were an electric washing machine it would be classified under 353 rather than under the machine paragraph 372. If perchance it happened to be an electric machine such as a sewing machine, it probably would be more specifically provided for in paragraph 372 and therefore could not be drawn into the provisions of paragraph 353.
After very much consideration it is my firm belief that every paragraph in the Tariff Act which covers electrical articles such as are provided for in 353 was intended to be invaded unless the legislative history showed to the contrary, or unless the paragraph itself to be invaded provided to the contrary, as was the case in the hollow-ware paragraph 339, and other paragraphs in the statute. How otherwise could the declared purpose of Congress be accomplished?
In the instant case the Government has stipulated .that the electrical motors in the radio-phonograph record changer units are essential elements. This eliminated any question as to the essen-tiality of the motors and, in my judgment, in view of the legislative history and the circumstances hereinbefore referred to, the relative specificity of the two terms was a matter of no concern, because, as above stated and as held in the foregoing cited cases, even though eo nomine named elsewhere, if they were electrical they came out and went into paragraph 353.
The fact that this court has been presented issues in this character of cases upon the doctrine of relative specificity alone, depending upon a “use” provision and the fact that the cases were decided upon that issue (which cases are referred to in the briefs) does not change the situation. The doctrine of “use” goes to the question of relative specificity, and specificity is not controlling where the articles fall within paragraph 353.
Discussion by counsel as to which provision is the more specific by reason of a consideration of a “use” provision (which goes to the question of specificity) is purposeless, because it is clearly obvious, and we have so held, that Congress intended to invade, more specific provisions and bring the specified articles into paragraph 353.
However, I have no criticism of counsel for discussing the holdings in certain decisions by this court if they thought that such consideration might be important in the decision of this case. (The majority opinion shows that it was important.) But after all, in view of the legislative history cited in the Coxhead, and Dryden cases, it, from my viewpoint, was unnecessary.
Since writing the above, the majority have added much to the opinion concerning the legislative history, and, I think, stress as being *50of controlling influence the fact that during the passage of the act under consideration Congress added the word “dictaphones” but did not provide for “combinations.” If this reasoning is carried out it means that no longer can any article be classified under the provision “and similar articles” for the reason assigned by the majority that Congress could have put the similar articles into the bill by name at the time the “dictaphones” provision was inserted. It is reasonable to presume then that the majority would hold that if “similar articles” were known at the time the language was used (and we must presume they were) they should not find classification in this paragraph regardless of the effect of paragraph 353, for the reason that Congress, when it had the opportunity, did not specifically name them.
In my judgment, I respectfully submit, this reasoning is unsound and should not be indulged in even though it enables the court to avoid deciding the embarrassing issue as to whether or not the paragraph is invaded by the provisions of paragraph 353 on account of the legislative history hereinbefore referred to.