Griffon Importing Co. v. United States

Jackson, Judge,

dissenting, with whom Johnson, Judge, joins.

I am gravely concerned over the disposition of this appeal and feel impelled to protest against the decision of the majority as being illogical and unsound.

I have endeavored to the utmost of my ability to find some rational basis for the conclusion of the majority, but I must confess my failure in that respect.

It appears to me that, by the decision of the majority, the will of Congress, as expressed in the involved statute, has been distorted from its plainly expressed intention.

There are forty-four protests included in this case, all of which are directed against the assessment of duty on certain glass bottles, exported from England, at 75 per centum ad valorem pursuant to paragraph 218 (e) of the Tariff Act of 1930. In the protests the merchandise was claimed to be dutiable at 25 per centum ad valorem under the same paragraph, the pertinent portion of which reads as follows:

Pab. 218. (e) Bottles and jars, wholly or in chief value of glass, * * *; all the foregoing produced by automatic machine, 25 per centum ad valorem; otherwise produced, 75 per centum ad valorem. [Italics ours.]

The judgment appealed from was made by a divided court, the majority opinion holding that the involved merchandise was produced otherwise than by an automatic machine and the dissenting opinion stating that the instant case is not distinguishable from the case of Jos. Riedel Glass Works, Inc. v. United States, 12 Cust. Ct. 173, C. D. 849, the judgment in which casé was affirmed by this court. United States v. Jos. Riedel Glass Works, Inc., 32 C. C. P. A. (Customs) 201, C. A. D. 307.

*132In the dissenting opinion it is stated that the manual work performed in producing the involved merchandise can not be characterized as “productive,” and that “The gatherer” merely supplies or feeds the material, molten glass, into the machine and the so-called operators supplied power to the machine, whose automatic operation produced the bottles under consideration.

In the principal brief for appellant, counsel, paralleling the reasoning expressed in the -dissenting opinion, contends that the manual work performed in the production of the involved merchandise is not productive; that the testimony offered on behalf of the Government is incompetent and immaterial, and at best opinion evidence of interested witnesses and without weight -in determining the common meaning of the words of the statute; and that the involved bottles were produced by an “automatic machine,” as that term was construed by this court in the Riedel case, supra. A supplemental brief was filed in which it was contended that it was not the intention of Congress to apply the rate of 75 per centum ad valorem to any articles mentioned in the involved paragraph except those produced by a glass blower; i. e., a hand-produced article wherein the blowing was done by human breath. It is stated in that brief that in the Riedel case, supra, this court found it unnecessary to review the legislative history referred to by the trial court in its decision therein, but it is also said that the statement in its decision,

Suffice to say, that aside from the question of revenue, the intent of Congress as demonstrated by the legislative history of the statute was to protect American glass blowers against the competition of lower-paid glass blowers of other nations by providing a duty of 75 per centum ad valorem for all bottles produced otherwise than by automatic machine.

should control the decision here.

Much of the legislative history pertaining to the involved paragraph was quoted in the supplemental brief in which it is further contended that irrespective of legislative history, the machines producing the involved merchandise were automatic machines.

The involved paragraph is new in the Tariff Act of 1930, and was first interpreted in the Riedel case, supra. In that case atomizer bottles, toilet water bottles, and perfume bottles were imported at the port of New York from Czechoslovakia. They were classified by the collector at the rate of 75 per centum ad valorem as having been produced otherwise than by an automatic machine. The protest claimed that the merchandise was properly dutiable .at 25 per centum ad valorem as “bottles- produced by automatic machine.”

• It is apparent that the issue here involved is the same as that which was involved in the Riedel case, supra. The record there disclosed — it was conceded by the Government — that the actual forming *133of the molten .glass into bottles was an automatic process. The Government, however, contended that the bottles were not produced by an automatic machine because the molten glass was fed into it manually by a workman known as a gatherer. It was clear in that case that the process of producing the bottles was entirely automatic in that after the material had been fed into the machine no human agency intervened between that stage and the stage whereat the completed bottle was ejected from the machine. Because of the facts, just stated, the trial court held that the involved merchandise was. produced on an automatic machine.

Upon appeal by the Government, the judgment of the trial court-was affirmed. United States v. Jos. Riedel Glass Works, Inc., supra. In our opinion there we quoted the following definition from W ebster’s. New International Dictionary, Second Edition, 1936, p. 204

automatic machine. A machine or machine tool which, after once being set, operates automatically except for applying the power, lubrication, supplying material, and shutting off the power. [Italics ours.]

W e held that the machine which produced the imported merchandise-fell squarely within that dictionary definition and accordingly affirmed the judgment of the trial court. We made no reference to the legislative history of the paragraph, except to state that it was. the intent of Congress to protect American glass blowers against competition by lower-paid glass blowers of other nations by providing the higher rate-of duty for all bottles produced otherwise than by an automatic-machine. That brief reference to legislative history, in my opinion,, was entirely unnecessary for decision, because the complete reason for our conclusion was that the imported merchandise was produced upon an automatic machine measured by the common meaning of that term, as it appears in the dictionary definition above quoted. In other words that reference was obiter dicta.

Apparently for the reason that it was the first judicial review of paragraph 218 (e), and for no other reason I can see, the trial court in that case, in concluding that the merchandise was produced on an automatic machine, deemed it appropriate to set out in some detaiL the legislative history. The presiding judge, who delivered the opinion of the court, quoted from the Congressional Record, 71st. Congress, 1st Session, pages 5214, 5215; the records of hearings on the tariff bill before the Committee on Ways and Means, Tariff' Readjustment, 1929, Vol. II, pages 1366, 1369, and 1370; the Supplement to Tariff Information on items in Tariff Bill of 1930 (H. R. 2667) with respect to paragraph 218 (e); the brief submitted to the-Committee on Ways and Means by the Glass Container Association of America, Tariff Readjustment, 1929, Vol. II, page 1363; the findings. by the Department of Labor appearing in a publication, No. 441,. *134under the^heading “Productivity of Labor in the Glass Industry”; a special pamphlet from the Department of Justice prepared in 1938 for the use of the Temporary National Economic Committee; the Encyclopaedia Britannica, 14th Ed., Vol. 2, page 785, and Vol. 3, page 955; Modern Glass Practice, by S. it. Scholes, published by Industrial Publishers, Inc., Chicago, 1941; Machinery’s Encylopedia, published by Industrial Press at New York, 1917, Vol. 1, page 178. Thus it will be seen that the trial court in that case made extensive research into the legislative history pertaining to the paragraph and also consulted other publications as to the proper meaning to be attached to the expression “automatic” in that case.

In the instant case, counsel for appellant merely introduced in ■evidence certain interrogatories and cross interrogatories propounded to and answered by the Managing Director of the International Bottle Co. Ltd. of London, England, with respect to the process by which the involved merchandise was produced. In his answers it was stated that: “Molten glass is transferred, by a gatherer using a ■solid gathering iron, from the furnace to the parison mould to which áre fitted the neckring moulds.”; “No. 1 Operator cuts off sufficient glass which, by means of vacuum created by continuously working pumps to which the machine is connected, is automatically sucked into the neck moulds. This operation forms the aperture, the brim ■and the external shape of the neck of the bottle.”; “The quantity of •glass is largely determined by the size or capacity of the parison mould •and also partly by the point at which the operator cuts the glass from the gathering iron.”; “Compressed air, supplied from power driven compressors, is released through a control valve to blow the internal ■shape of the neck and the parison form. The parison form is determined by the shape of the parison mould.” and “The neckring moulds in their spring loaded holders, supporting the partly formed bottle, ■are transferred (by No. 1 Operator) to the blow or finishing mould. No. 2 Operator lowers the blow head thereby releasing the valve which •controls the compressed air supply. The bottle is then automatically [mechanically] blown to the shape of the finishing mould. The finished bottle is removed from the mould by No. 2 Operator who compresses the spring of the neck mould holders, automatically [mechanically] ejecting the bottle on to the table of the machine. Erom this point the bottle is carried to the annealing lehr.”

No further evidence was offered on behalf of the appellant. The Government produced two highly skilled and long' experienced witnesses in the bottle producing industry, • one of whom testified at great length concerning the development of the production of bottles from the hand-blown stage to the development of an automatic machine wherein the feeding thereof was done by mechanical power. *135Both witnesses testified that they had seen bottles manufactured and produced in the same manner as described in appellant’s evidence. One witness testified without contradiction that a machine, such as was alleged to have produced the imported merchandise, is not an automatic machine, but that it is a hand-operated machine. It was agreed by the parties after the second witness had been duly qualified and had stated he had seen bottles produced in the same manner as that described in plaintiff’s evidence, that he would in all other respects testify in accord with the testimony given by the first witness. He was not further interrogated.

It may be here observed that nowhere in the record appears a description of the machine or machinery by means of which the involved merchandise was allege\d to have been made. Therefore, we cannot know its structure.

It appears in the deposition that the machines said to be employed were of the “Schiller” type. It was said that such machines are incapable of being identified by serial numbers or otherwise and I have not found a bottle making machine bearing that name referred to in any of the many treatises of the bottle making art I have examined. In the process described in the depositions, I do not find any clear basis for concluding that the bottles were made on what is commonly known as a machine. A definition' typical of those found in the various dictionaries appears in Funk and Wagnalls New Standard Dictionary of the English Language, page 1483, as follows:

machine, n. 1 Any combination of inanimate mechanism for utilizing or applying power._ Specif.: (1) a construction for mechanical production or modification, generally complicated, and involving more than one mechanical principle, as an arrangement of gears, cranks, connecting-rods, etc.

Definitions from what appear to be high authority, more detailed but substantially the same as that just quoted, are found in A History of Mechanical Inventions, by Abbott Payson Usher, Associate Professor of Economics, Harvard University, on page 66, as follows:

Every machine will be found to consist of a train of pieces connected together in various ways, so that if one be made to move, they all receive a motion, the relation of which to that of the first is governed by the nature of the connection.
A machine is a combination of resistant bodies so arranged that by their means the mechanical forces of nature can be compelled to do work accomplished by certain determinate motions.

All that can reasonably be gathered from the record on behalf of appellant is that there is a reservoir of some kind containing molten glass. A gatherer, by means of a rod held in his hands, brings a gob of such glass to a parison mould which is fitted with a neckring mould. When that has been done, another man, called operator No. 1, clips, off enough of the gob for the finished bottle. Then the gob is sucked *136into the neck mould by means of a vacuum created by continuously •working pumps. That operation, it is said, forms the aperture, the brim, and the external shape of the neck of the bottle. After that operation, the holder supporting the partly formed bottle is taken from its position by that operator to another means called a blow or finishing mould. There is nothing in the record from which it can be inferred that the second mould has any cooperative relationship with the first mould or that it is part of the apparatus comprising the .first mould. After the partly formed bottle in its mould has been transferred to the second mould, another operator by manual means lowers the “blow head” thereby releasing the valve controlling compressed air which passes into the second mould, blowing the article into its final form, which is the interior shape of the finishing mould. The article thus formed is taken from the second mould by the second •operator, who by compressing a spring on the neck mould holder releases the formed article, which is ejected onto a table. From there it is carried by human means to the annealing lehr. In the lehr the article is again heated and then allowed to cool slowly. Then and ■only then is a bottle, as known to commerce, completed.

From the description of the process just related, it is clear that nothing can be found therein which may be said to show “a train of pieces connected together in various ways, so that if one be made to move, they all receive a motion, the relation of which to that of the •first is governed by the nature of the connection.” As a matter of fact it clearly appears that there is no mechanical connection or cooperation between the first means by which the neck portion of the bottle is formed and the second means by which the form of the bottle is finished. Therefore, in my opinion, it has not been shown by appellant that the means by which the involved merchandise was made is 'in reality a machine.

A fortiori, the successive intervention of human agency in the pro•duction of the bottle and without which no bottle could possibly be made, even granting that the bottle was made on a machine, convinces me •conclusively that the imported goods were not produced by an automatic machine.

Reverting to the definition of an automatic machine appearing in ■our opinion in the Riedel case, supra, which we quoted with approval, it is utterly incomprehensible to me how the majority can square the machine, assuming that one has been disclosed herein, with that •definition. As I view it, the apparatus by which the involved merchandise was produced is no more an automatic machine than a ■pancake griddle. There a measured quantity of batter is placed on the griddle. After the cake has been cooked on one side, it is turned manually and cooked on the other side. When it has been cooked ■on both sides, it is removed by hand as a finished article.-

*137The meaning of the word “automatic,” I feel certain, is commonly known to every school boy and girl over the age of ten years. The definition of the word appearing in Corpus Juris Secundum, Vol. 7, at page 1296, is clear and in accordance with all other definitions thereof that I have been able to find. It reads as follows:

automatic. Self-acting; or the elimination of human agency or volition, which results in the saving of labor and increases certainty and uniformity of operation; having an inherent power of action or motion, self-acting or self-regulating, not voluntary, not depending on the will, mechanical.

Because an automatic machine in its action functions automatically, we find in the same authority on page 1297 the following definitions:

automatically. Acting without the continued application of human agency or volition, that is, as opposed to acting rationally or volitionally; of its own accord; self-acting.

Clearly, the production of the involved merchandise, as appears in this case, can not possibly be ascribed to a machine which would conform to the structure or operate in accordance with the just quoted definitions.

While there is but little judicial pronouncement defining the words “automatic” and “automatically,” we find in the case of Tripp Giant Leveler Co. v. Rogers et al., 61 Fed. Rep..289 (C. C. D. Mass. 1894) that a claim was sustained in a patent infringement suit wherein the defense alleged invalidity of the patent for want of novelty. In its opinion, the court pointed out that while the constituent elements of the machine were old, that this patentee was the first to combine its elements in such fashion as to cause them to function in unison. The patent was held valid because it disclosed a process by which certain machines were made automatic. In defining the word automatic, the court at page 290 stated as follows:

* * * By automatic is meant self-acting, or the elimination of human agency or volition, which results in the saving of labor, and increased certainty and uniformity of operation. This is the sense in which the term is used in the mechnical arts and in the patent law, and I cannot agree with the position of defendant’s expert who seeks to detract from the merits of the Cutcheon invention by maintaining the broad doctrine that all contrivances are automatic which are operative for the purposes designed under any applied force, whether muscular or otherwise, and which, therefore, include a wheelbarrow and hand press in the category of automatic machines.

TLe circuit court of tbe district of New Jersey in the case of Cleveland Target Co. v. Empire Target Co. et al., 97 Fed. Rep. 44, 74 (C. C. D. N. J. 1899) quoted its interpretation of the term as follows:

*. * * The term “automatic” is constantly applied to valves, although their action depends on the pressure of liquids or other fluids against them. So the operation of automatic car couplers is dependent on the action on them of the parts to be coupled. In Westinghouse v. Brake Co., 170 U. S. 537, 545, 18 Sup. Ct. 711, the court speaking of car-brake couplings said:
*138“These coupling were automatically detachable; that is, while they kept their grip upon each other under the ordinary strain incident to the running of the train, they would readily pull apart under unusual strains,-as when the car coupling broke and the train pulled in two.”

The circuit court of appeals of the first circuit in the case of American Roll Gold Leaf Co. et al. v. W. H. Coe Mfg. Co. et al., 212 Fed. Rep. 720, 724 (C. C. A. 1st 1914) had the following to say with respect to the term “automatically”:

The word “automatically,” as applied to mechanism, is in common use and is unambiguous. It means “self-acting,” and it implies a certain cycle of movements which the machine itself makes without outside control. This cycle may be simple or complex. In the development of many machines there can be traced a constantly increasing extent of automatism; by which is meant that many steps or processes, which formerly had to be started, stopped, or controlled by the operative, are now started, stopped, or controlled by the machine itself.

In the case of Johnson v. Southern Pacific Company, 196 U. S. 1, it was held that automatic couplers on railroad cars are those which couple automatically by impact without men going between the cars.

I am firmly of the opinion, in view of what has hereinbefore been said, that it cannot possibly be properly held that the involved merchandise comes within the purview of having been produced on an automatic machine.

The opinion in the Riedel case, supra, and the prevailing opinion in the present case were written by the same judge of the trial court. In my opinion both carefully considered and logically written opinions are based on sound sense and sound law. The facts in the Riedel case, supra, and those in the instant case were clearly and properly distinguished in the trial court’s opinion in the instant case. Since I agree with the reasoning of the trial court, I am in direct opposition to the reasoning employed by the majority here.

I can not see, nor does the opinion of the majority point out, why the following language appearing in the opinion of the trial court should not be approved and adopted by us.

* * * The Congress did not use language separating these bottles into “hand-blown” at one rate and “machine-made” at the lower rate, nor did it choose to select the “hand-blown” type for greater protection and relegate those “otherwise produced” to the lower rate. The Congress presumably for good and sufficient reasons, chose the language now found in paragraph 218 (e) “produced by automatic machine.” It is not within our province to make the laws. We may not substitute our opinion for the written statute. We must apply the language which was actually used by the Congress and have no right to give any meaning to such language other than that conveyed by the words, terms, or expressions in which the legislative will was expressed. (Edgar Allen Steel Co. (Inc.) et al. v. United States, 16 Ct. Cust. Appls. 26, page 29, T. D. 42716.) We are of the opinion that as the statute is now worded we must find the bottles before us not to have been produced on an automatic machine. We have already held to be automatic a machine which did not have the molten glass automatically fed to the machine, but which thereafter operated automatically. We may not substitute for the words of the statute “produced by automatic machine,” the *139■words “produced by machine.” To do so would be to invade the legislative functions of the Congress. In so holding, we are mindful of the language of our appellate court in concluding its opinion in the Riedel case, supra. It said:
* * * Suffice to say, that aside from the question of revenue, the intent of Congress as demonstrated by the legislative history of the statute was to protect American glass blowers against the competition of lower-paid glass blowers of other nations by providing a duty of 75 per centum ad valorem for all bottles produced otherwise than by automatic machine.
We do not understand that our appellate court by use of the above-quoted language intended to indicate that only hand-blown bottles were to be subject to the higher rate of duty. We are of opinion that as the provisions of paragraph 218 (e) now stand, the only imported glass bottles subject to the lower duty (25 per centum) are those which are “produced by automatic machine.” [Italics quoted.]

It seems to me no other reasonable conclusion can be drawn from a reading of the opinion of the trial court than that Congress intended in enacting the involved statute, not only to protect the manual glass bottle blowers, which it certainly did, but also to favor producers of bottles made on an automatic machine by fixing a duty on such product and placing a higher rate of duty on articles otherwise produced in any manner. If it can properly be held that a supposed machine, which produced the bottles herein, is an automatic machine, despite the fact that in order to produce a bottle on that machine it is absolutely necessary to have three steps therein performed by manual labor after the gob is fed into the first mould, we should not hestitate to term a machine automatic which is entirely operated by human means except for a single machine step. In my opinion, the involved paragraph is clear and unambiguous and should not be, as is done by the majority, twisted into something that it does not mean by resort to legislative history. The United States Supreme Court in discussing resort to legislative history stated in the.case of United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 83, as follows:

■ * * * In proper cases, such reports are given consideration in determining the meaning of a statute, but only where the meaning is doubtful. They cannot he resorted to for the purpose of construing a statute contrary to the natural import of its terms. Wisconsin R. R. Commn. v. C., B. & Q. R. Co., 257 U. S. 563, 588-589; Penna. R. Co. v. International Coal Co., 230 U. S. 184, 199; Van Camp & Sons v. American Can Co., 278 U. S. 245, 253. Like other extrinsic aids to construction their use is “to solve, but not to create an ambiguity.” Hamilton v. Rathbone, 175 U. S. 414, 421. Or, as stated in United States v. Hartwell, 6 Wall. 385, 396, “If the language he clear it is conclusive. There can he no construction where there is nothing to construe.” [Italics ours, except solve and create.]

In the case of Addison et al. v. Holly Hill Fruit Products, Inc., 322 U. S. 607, the Court said:

* * * After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.

*140Of similar import are the following cases in this court. Armand Schwab & Co., Inc. v. United States, 32 C. C. P. A. (Customs) 129, C. A. D. 296; Thorens, Inc. v. United Stales, 31 C. C. P. A. (Customs) 125, C. A. D. 261; United States v. R. F. Downing & Co., 17 Ct. Cust. Appls. 194, T. D. 43645; Woolworth Co. v. United States, 13 Ct. Cust. Appls. 176, T. D. 41037; United States v. Davies Co., 11 Ct. Cust. Appls. 392, T. D. 39317; and the 14 cases, commonly known as the “Five Per Cent Cases,” 6 Ct. Cust. Appls. 291, T. D. 35508.

However, I am quite certain that the legislative history of the involved act clearly discloses an intent of Congress consistent with my views.' The bill, as originally passed by the House, made no distinction between rates of duty on bottles, whether or not produced by an automatic machine. When the bill reached the Senate, an amendment known as “Amendment No. 222,” was made to the bill. After the bill had been so amended, it went to conference, and there the House representatives accepted the bill as amended, as appears in the statement of the Managers on the part of the House, written in explanation of the effect of the action agreed upon by the conferees, and commented on in the conference report as follows:

Amendment No. 222: The House bill imposed a duty of 70 per cent ad valorem on bottles and jars, wholly or in chief value of glass, of the character used or designed to be used as containers of perfume, talcum powder, toilet water, or other toilet preparations, and on bottles, vials and jars, wholly or in chief value of glass, fitted with or designed for use with ground-glass stoppers. The Senate amendment limits the application of the subparagraph in the case of bottles, vials, and jars, wholly or in chief value of glass, fitted with or designed for use with ground-glass stoppers, to such articles when suitable for use and of the character ordinarily employed for the holding or transportation of merchandise. It reduces to 25 per cent the duty on all articles in the subparagraph made by automatic machine and increases to 75 per cent the duty on such articles when otherwise produced. The amendment further provides that for the purposes of the subparagraph no regard shall be had to the method of manufacture of the stoppers or covers. The House recedes. (Conference Reports, Act of 1930.) [Italics ours.]

In Supplement to Tariff Information on items in Tariff Bill of 1930 (H. R. 2667) together with the reasons for the Senate amendments, the same information is set out.

I think it informative to repeat pertinent portions of the legislative history, as was set out in the opinion of the trial court in the Riedel case, supra-, as follows:

In the Congressional Record, 71st Congress, First Session, at page 5214, Senator Edge stated:
Mr. Edge. I desire to offer an amendment to the paragraph which will make perfectly clear the intent of the committee that the 82)4 per cent rate shall apply alone to handmade bottles. * * * The amendment which I will offer wiil make the 82)4 per cent rate apply alone to bottles made by harid. I think that will meet many of the objections which I have heard from the importers.
*141At page 5215:
Mr. Edge. Of course, after the speech of the Senator from Tennessee it probably will not make any difference; but if the Senator wants the facts, let me say that this concern is a large concern — there is no doubt about that — but we are not discussing machinemade goods. The company represented by the witness no doubt has hundreds of machines, but the rate proposed does not apply to the goods made by machines or any importations of machinemade goods.—
Mr. Edge. If the Senator will pardon me for just a moment more, they are asking for a duty on handmade goods; and the particular plant referred to has a handmade branch, of course, but it also produces machinemade goods.
* # H« Hi . Hi H«
Mr. McKellae. Mr. President, will the Senator from Michigan yield? I want to ask the Senator whether his amendment applies solely to hand-blown bottles and stoppers?
Mr. Cotfzens. Absolutely.
Mr. McKellae. It does not apply generally, as in the amendment offered by the Senator from New York?
Mr. Cotjzens. No; solely to hand-worked glass.
At page 5217:
Mr. Copeland. * * *. I propose this: That on line 2, page 46, the comma and the rest of the sentence be stricken out and that we insert the words “if •produced by automatic machine, 65 per cent ad valoren^ and when not so produced the rate shall be 75 per cent ad valorem.” [Italics ours.]
* * *. It is not right that the same rate should be placed upon the automatically made bottle as is placed on the bottle which is hand blown. If we are here to try to serve the public, I believe we may.by the addition of 10 per cent to the present rate, which is 55 percent, give encouragement to the production of the machine-made bottle and at the same time protect the maker of the hand-blown bottle.
In the record of the hearings before the Committee on'Ways and Means, Tariff Readjustment, 1929 (Vol. II, page 1366) appears the following:
Mr. Ramseyee. You agree with the witness who preceded you that there is no need for an increased tariff on machine-made bottles?
Mr. Gaynee. In so far as I understand it.
Mr. Ramseyee. Do you agree with him that there should be some increase on hand-made bottles?
Mr. Gaynee. Absolutely; because with the machine-made bottles the labor element does not enter into it. The glass flows automatically into the machine. It is- handled entirely by the machine and conveyed to the annealing lehr, and not touched by human hands until it is ready to be sorted and packed.

From a careful examination of tlie foregoing history and what I think is a proper understanding of the involved paragraph, it appears to me to be elementary that the framers of that paragraph intended to apply a low rate of duty to one type of bottle, namely that made by automatic machines.

Certainly it appears that- Congress was apprized- of the fact that several bottle producers in the United States produced bottles by automatic or semi-automatic machines. It is also clear from the record and must have been known by Congress that- automatic bottle making machines were developed in the early 1920’s. It further appears without contradiction in the record, and of which Congress must be presumed to have knowledge, that the method of operation, set out in appellant’s case .herein, is known in the United States as being performed by “hand operated machines.” The record herein shows that the bottle making machines operated and regulated by skilled craftsmen in the art have been in common usage in the industry *142since the early 1920's. It is further clear from the legislative history that the wording of the involved paragraph, with the exception of the rate of duty upon the two classes of bottles, is in substantially the same phraseology as that tendered by Senator Copeland, herein-before quoted, “if produced by automatic machine, 65 per cent ad valorem, and when not so produced the rate shall- be 75 per cent ad valorem.” This he stated, as hereinbefore set out, would “give encouragement to the production of the machine-made bottle and at the same time protect the maker of the hand-blown bottles.”

It is very clear to me that Congress did intend to protect the hand glass blowers, which it certainly accomplished in writing the involved paragraph. It is also clear to me that in so doing, Congress had the further intention of protecting the skilled mechanics who operated the so-called hand machines or semiautomatic machines. This Congress did in clear, succinct, and unmistakable language.

The majority decision in my opinion runs foursquare against the judicial definitions given in the cases hereinbefore cited; is inconsistent with the universally known common meaning of “automatic” heretofore discussed; and legislative history has been employed to create an ambiguity, ignoring the plain, clear, and certain language of the statute.

I can not bring myself to agree with the philosophy of Little Buttercup, as it is in effect implicit in the majority opinion that “Things are seldom what they seem.” Neither can I believe, as I would he compelled to believe if I agreed with the majority, that the Congress purposely, ignorantly, or inadvertently so masked its intent that we should “behold without seeing and hearing not understand.”

. As may be clearly discerned from the legislative history, Congress knew full well all about automatic and other machines and all about hand glass blowing in the bottle making art when the involved paragraph was worded. I am sure that Congress meant exactly what it said in well considered, plain, unambiguous language. Had it been its intention to legislate as the majority opinion holds, I feel that it would beyond all doubt have enacted the involved paragraph in the following or equivalent language:

Bottles and jars, wholly or in chief value of glass, * * * produced by hand blown method, 75 per centum ad valorem; otherwise produced, 25 per centum ad valorem.

After all, in considering statutes we must judge by the results and not by the various factors which may have determined legislative votes. It is the latter that I fear has influenced the majority.

I make bold to state that I believe this dissenting opinion and the prevailing opinion of the trial court are “as sound as the sea is salt” and “as conclusive as Mount Everest.” '

The judgment of the trial court should be affirmed.