DISSENTING OPINION.
Judges De Vries and Martindissent from the foregoing decision, for reasons stated in the following opinion:
The merchandise in hand consists of pieces of the hard, white albumen of tagua nuts, sawed into various suitable sizes, intended for use in the manufacture of buttons. The importers in their brief describe these as “tagua nuts cut into slabs,” whereas the Government’s brief describes them as “slabs of the substance called vegetable ivory.” These several descriptions serve to define the issue in the case, which is, whether the merchandise is tagua nuts, or is a distinctive substance called vegetable ivory derived from tagua nuts.
The collector held against the importers’ claim, and assessed duty upon the merchandise at the rate of 15 per cent ad valorem as a nonenumerated manufactured article under paragraph 385 of' the tariff act of 1913.
' The importers protested, claiming the merchandise to be free of duty as tagua nuts under paragraph 620 of the act.
*77The Board, of General Appraisers overruled the protest, and tbe importers now appeal.
For convenience of reference tbe following germane paragraphs are copied from tbe present tariff act or from former tariff revisions:
Act of March 3, 1883.
(Free list.) Ivory and vegetable ivory, unmanufactured.
Act of October 1,1890.
(Free list.) 618. Ivory and -vegetable ivory, not sawed, cut or otherwise manufactured. '
Act of August 27, 1894-
(Free list.) 519. Ivory, sawed or cut into logs, but not otherwise manufactured, and vegetable ivory.
Act of July 24, 1897.
(Free list.) 584. Ivory tusks in their natural state or cut vertically across the grain only, with the bark left intact, and vegetable ivory in its natural state.
Act of August 5, 1909.
(Free list.) 596. Ivory tusks in their natural state or cut vertically across the grain only, with the bark left intact, and vegetable ivory in its natural state.
Act of October S, 1913.
369. Ivory tusks in their natural state, or cut vertically across the grain only, with the bark left intact, 20 per centum ad valorem; manufactures of ivory or vegetable ivory, or of which either of these substances is the component material of chief value, not specially provided for in this section, 35 per centum ad valorem; * * *.
385. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for in this section, a duty of 10 per centum ad valorem, and on all articles manufactured, in whole or in part, not provided for in this section, a duty of 15 per centum ad valorem.
(Free list.) 620. Tagua nuts.
It thus appears tbat the term “tagua nuts” was first used by Congress in tbe tariff revision of 1913. Tbe testimony, tbe exhibits, and tbe standard authorities show tbat tagua nuts are tbe kernels or seeds of tbe fruit of certain palm trees- wbicb flourish in South America and wbicb grow to some extent in northern Africa. Tbe following definitions and descriptions thereof are quoted as illustrative of tbe testimony and exhibits in tbe case.
Standard Dictionary:
Tagua.—The ivory palm.
Ivory palm.-—The tree that bears ivory nuts.
Ivory nut.—The seed of a tropical American, palm (Phytelephas macrocarpa), which when dry becomes hard and white, and when polished resembles ivory. See Vegetable ivory.
Vegetable ivory.—The albumen of ivory nuts, used for many kinds of ornamental work.
*78Murray’s English Dictionary:
Vegetable ivory.—The hard albumen of the nut or seed of a South American palm, Phytelephas macrocarpa, which resembles ivory in hardness, color, and texture, and is used for ornamental work, buttons, etc.
Century Dictionary:
Tagua (native name in Colombia).—The ivory palm, Phytelephas macrocarpa. See Ivory-nut * * *.
Ivory nut.—The seed of Phytelephas macrocarpa, a low-growing palm, native of South America. The seeds are produced, 4 to 9 together, in hard clustered capsules, each head weighing about 25 pounds when ripe. Each seed is about as large as a hen’s egg; the albumen is close-grained and very hard, resembling the finest ivory in texture and color; it is hence called vegetable ivory, and is often wrought into ornamental work. It is also known as corozo.
Encyclopaedia Britannica:
Ivory.—Vegetable ivory, etc., * * *. The plants yielding the vegetable ivory of commerce represent two or more species of an anomalous genus of palms, and are known to botanists as Phytelephas. * * * The plant is severally known as the “tagua” by the Indians on the banks of the Magdalena, as the “alita” on the coast of Darien, and as the “pullipunta” and “hornero ” in Peru. * * * The fruit consists of a conglomerated head composed of six or seven drupes, each containing from six to nine seeds, and the whole being inclosed in a walled woody covering forming altogether a globular head as large as that of a man. * * * In its very young state the seed contains a clear, insipid fluid, which travelers take advantage of to allay thirst. As it gets older this fluid becomes milky and of a sweet taste, and it gradually continues to change both in taste and consistence until it becomes so hard as to make it valuable as a substitute for animal ivory. * * *
New International Encyclopedia:
Ivory, vegetable.—The fruit of a handsome palm, Phytelephas macrocarpa, which grows in the Peruvian Andes, on the banks of the river Magdalena, and in other parts of South America. * * ■ * The fruit, which is as large as a man’s head, consists of six or more four-celled aggregated drupes, and contains numerous somewhat triangular nuts as large as a hen’s egg. The kernels of these nuts, called corrozzo nuts in commerce, are so hard and white, and resemble ivory so greatly, that the name vegetable ivory is particularly applicable. They have of late come into extensive use with turners in the manufacture of buttons, umbrella handles, and small trinkets.
Thorpe’s Dictionary of Applied Chemistry:
Tagua nut.—The stony seed of several species of the South American genus of palms, Phytelephas, are known as tagua nuts and are worked as vegetable ivory.
The following is a part of the testimony of witness A. E. White-house, who is the virtual importer of the present merchandise:
Q. (By Mr. Levett.) What is this merchandise?—A. Tagua nut.
Q. Can you tell us something about what the tagua nut is?—A. It is the kernel or seed of a palm.
Q. Where'does it grow?—A. This particular thing grows in Africa.
Q. Imported from Africa?'—A. Yes, sir.
Q. Have you a sample of the nut as it drops from the tree?—A. Yes. (Witness produces sample.)
Q. The merchandise you imported is the kernel of this article you now produce?— A. Yes, sir. (Sample is offered in evidence as an illustrative exhibit. ' Admitted and ■ marked illustrative Exhibit A.)
*79Q. Have you had one of these nuts cut in two half pieces, showing just what it loots like?—A. I have.
Q. Those half pieces have half the kernel in there also?—A. .Have half of the kernel; yes, sir.
(Samples are offered in evidence, admitted, and marked illustrative Exhibit B.)
Q. Then the article as imported is the kernel of the illustrative Exhibit B further sawed?—A. Further sawed.
Q. That is all that has been done to it?—A. That is all, except it may be tumbled.
Q. (By Mr. Hardison.) How is it processed; what is done to it before it comes here?—A. Before imported?
Q. Yes.—A. The only way of getting it.
Q. How is it processed abroad before it comes here?—A. The natives gather it from the trees, using a machete in taking the kernel out.
Q. How do they get it out?—A. With a machete. Give it a sharp blow, open it, fear it apart.
Q. Then?—A. Then it is put to a circular saw and sawed into pieces.
Q. Into how many pieces do they saw them?—A. According to the shape they are; foul’ or five different pieces.
Q. What else is done to it?—A. That is all.
Q. Do they take this outside part off?—A. In some cases they do, and in some cases they do not.
Q. The product comes in clean?—A. No, not exactly. We wish it did; but it don’t.
Q. (By Mr. Levett.) What is made out of these pieces after they come in?—A. Buttons.
Q. They are sold as raw product to the button makers?—A.. Yes, sir.
The foregoing quotations, when considered together, lead properly to the conclusion that the name "tagua nuts” applies more specifically or distinctly to the whole nuts or seeds as they issue from the fruit, and that the ivory-like albumen of the nuts, when cut into slabs to serve as a manufacturing material, is more exactly designated as "vegetable ivory.” It is true that these several names are somewhat loosely used, and that sometimes the term “vegetable ivory” is applied indifferently to whole nüts and sawed slabs alike; especially is this true of the term "vegetable ivory, in its natural state.” But, on the other hand, the name “tagua nuts” is not commonly applied to the slabs or pieces of nuts, but to whole or entire nuts only. The sawed slabs in question commonly bear the name of "vegetable ivory” only, and this is expressive of the manifest fact that such slabs are no longer really "nuts” in the ordinary application of that term, but are a new and distinctive substance or material which has been derived or produced therefrom. This distinction between the two terms applies with special force in the present case, since the legislative history of the enactment in question gives unmistakable evidence that Congress used the new term "tagua nuts,’ not as a synonym of the former term "vegetable ivory” but as a term of contradistinction to it. ,
As already stated, the name tagua nuts first appeared in tariff legislation in the revision of 1913. Prior to that time the tariff provisions upon the subject related by name to vegetable ivory only. *80The tariff act of 1883 placed “vegetable ivory, unmanufactured,” upon the free list. The tariff act of 1890 gave free entry to “vegetable ivory, not sawed, cut, or otherwise manufactured.” The tariff act of 1894 admitted “vegetable ivory” free of duty. The tariff act of 1897 gave free admission to “vegetable ivory in its natural state.” The tariff act of 1909 reenacted this provision for the free entry of “vegetable ivory in its natural state.”
The effect of the provision last stated was officially defined by the Treasury Department on December 16, 1911, in T. D. 32088, in these words:
Sir: I have to acknowledge the receipt of your letter of the 11th instant in which you state that the samples submitted by the department would, if imported through your port, be classified as follows:
The samples contained in envelope No. 1, which are vegetable ivory nuts, you state would be admitted free of duty under paragraph 596; that the samples contained in envelope No. 2, and which consist of ivory nuts sawed into slabs, would be assessed with duty as manufactures of vegetable ivory under paragraph 464 at the rate of 35 per cent ad valorem,.and that the samples contained in envelope No. 3 would be classified as vegetable ivory button blanks at the appropriate rates provided under paragraph 427; that is, at the rate of three-fourths of a cent per line per gross and 15 per cent ad valorem.
The department concurs in the views expressed by you as to the classification of the samples contained in envelopes Nos. 1 and 3. The samples in No. 2 consist of ivory nuts sawed into slabs, and in the opinion of the department are entitled to admission free of duty under paragraph 596 as “vegetable ivory in its natural state,” following the decision of the Board of United States General Appraisers of August 3, 1909, Abstract 21688 (T. D. 29946), wherein it was held that certain lotus lily roots which had been washed, cleaned, sliced, and dried were entitled to classification under paragraph 257 of the tariff act of 1897 as vegetables in their natural state.
Respectfully, James F. Curtis,
(37653.) Assistant Secretary.
Collector oe Customs, Rochester, N. Y.
It is therefore clear that when Congress began to revise the tariff in 1913, unquestioned free entry was enjoyed by the entire nuts and also by the sawed slabs produced therefrom, under the construction placed by the department upon the provisions for “vegetable ivory in its natural state,” in the tariff act of 1909, and both articles were well-known subjects of import. See also Abstract 31142 (T. D. 33120). This fact was specifically mentioned in Report No. 5, page 720, House of Representatives, H. R. 3321, Sixty-third Congress, first session.
When the first bill for a tariff revision was introduced on April 7, 1913, in the House of Representatives, Sixty-third Congress, first session, H. R. 10, it contained the following dutiable provision in relation to this subject:
384. Ivory tusks in their natural state, or cut vertically across the grain only, with the bark left intact, and vegetable ivory in its natural state, twenty per centum ad valorem; * *
*81If this provision bad been enacted- it would bave followed under' tbe department’s definition ábove quoted tbat botb tbe entire nuts- and tbe sawed slabs in question would bave become' dutiable in .the-tariff act of 1913 at tbe rate of 20 per. cent ad valorem, whereas under tbe tariff act of 1909 botb articles bad been admitted free under'tbe enumeration of “vegetable ivory in its natural state.”
A reference to tbe bearings before tbe Ways and.Means Committee (vol. 5, p. 5125) and to tbe briefs and statements filed witb tbe Committee on Finance of tbe Senate (vol. 3, p. 1681) will disclose tbe fact tbat written arguments were publicly submitted to botb committees and entered upon their records in favor of a differentiation between tbe entire nuts on tbe one band and tbe cut slabs of vegetable ivory on tbe other, favoring tbe entry of tbe entire 'nuts free of duty and tbe imposition of duty upon tbe cut slabs.
As if actuated by this purpose, tbe tariff bill as reintroduced on-April 21, 1913, H. R. 3321, entirely omitted tbe provision for duty upon “vegetable ivory in its natural state” (see par. 380 of tbe bill) and added to tbe free list tbe eo nomine provision for “tagua nuts” only. This action was explained in Notes on Tariff Revision, 1913 (S. Doc. No. 136), in tbe following note appearing under tbe provision for “tagua nuts” in paragraph 622 (as then numbered):
622. Tagua nuts.
1909—Paragraph 596.—This is a substitute for the provision in paragraph 596 of the present law for vegetable ivory in its natural state.
The provision for tbe free admission of tagua nuts was thus enacted-in tbe tariff act of 1913 as a manifest substitute for tbe former provision for tbe free admission of vegetable ivory in its natural state, and the reasonable interpretation of tbe facts is tbat Congress intended thereby to discriminate between the natural ivory nuts upon tbe one hand and tbe prepared slabs of vegetable ivory on tbe other hand. Botb of these articles were admitted free of duty under tbe name of • “vegetable ivory in its natural state” under tbe tariff act of 1909, tbe board and tbe Treasury Department alike having held.to tbat effect. If, therefore, Congress bad desired to reenact_that provision, it is reasonable to assume under tbe circumstances tbat the same language would have been employed -for tbe accomplishment of tbat purpose. Instead of this, however, Congress expressly limited tbe new provision of tbe free list to “tagua nuts” only, omitting-from the act any provision for vegetable ivory under tbat, name. This new provision, which tbe committee designated as- a “substitute”, for tbe former one, was manifestly not. designed to bave tbe same force and effect as tbe provision for which it was substituted, but" was designed to effect a change im tbe law; by force' of the substitution. This change was effected by r’educing tbe free entry provisions *82of 'the act so as to admit free of duty tbe natural or entire nuts only abd not tbe slabs' wbicb might be prepared therefrom.
We think, therefore, that both the natural import of the terms in question and the clear inference from the legislative.history of the provisions, under review, lead to the conclusion that the present merchandise is not entitled to' free entry as tagua nuts under paragraph 620, act of 1913, but instead thereof, being, unenumerated in the preseht act and being manufactured in part, it is dutiable as a non-enumerated partly manufactured article under paragraph 385 of the act. In our opinion, therefore, the decision of the board should be affirmed.