CONCURRING OPINION BY
DE VRIES, JUDGE.This merchandise consists of “white earthenware embossed in the mold.” Because the earthenware is. not embossed by'superadded process but “in the mold,”' for the reasons set forth in the dissenting opinion in Smith & Co. v. United States (8 Ct. Cust. Appls., 256, 262; T. D. 37535), I concur in the result herein. By the same deductions I am unable to agree with the reasoning herein that any ornamentation or decoration, not super added, is within the purview of paragraph 79 of the tariff act of 1913, as “ornamented or decorated.” While such may be ornamental, they are in no case “ ornamented” or “ decorated.”
Nor am I in accord, with the conclusion reached that trade usage controls or is relevant to said paragraph 79.
The pertinent parts of the paragraph as quoted may well be here repeated.
Earthenware and crockery ware composed of a non vitrified absorbent body; * * * if plain white, * * * not painted, colored, tinted, stained, enameled, gilded, printed, ornamented or decorated in any manner, * * * 35 per centum ad valorem;
If painted, colored, tinted,-.stained, enameled, gilded, printed or ornamented or decorated in any manner, * * * 40 per centum ad valorem.
If it is within the ingenuity of Congress to construct a descriptive phrase as a tariff designation involving selected materials and a series of strictly descriptive conditions, so as to avoid variance by trade testimony, this paragraph so witnesses. If it does not, that long-exercised legislative method of Congress is no longer available.
*58The earthenware and crockery, eo nomine articles, are not here by name, adjectively or descriptively, made dutiable, but according as (1) they are composed of nonvitrified absorbent materials; (2) if that material is of a certain color; (3) in the alternative at different rates of duty whether or not painted or etc.; and (4) any of these in any manner. Here Congress is studiously reaching out not for a named article but for a clearly defined and described material and condition of an article, rating duty according to minute processes of production.
Duty is not made dependent, solely upon a named article but upon ■such when composed of certain defined materials in numerously described conditions thereof, leaving out of the provision all other articles of the same name not within the described conditions and not of the -designated materials.
This tariff designation is on all fours with that in Barber v. Schell (107 U. S., 617, 621), as recited in Cadwalader v. Zeh (151 U. S., 171, at page 178):
In Barber v. Schell (107 U. S., 617, 621), the words held not to be affected by commercial usage were “all manufactures composed wholly of cotton, which are bleached, printed, painted or dyed.” — Act of March S, 1857 (ch. 98, sec. 2; 11 Stat., 193). That designation, as observed by Mr. Justice Blatchford, speaking for this court, and following the decision of Mr. Justice Kelson in Reiner v. Schell (4 Blatch., 328), was a designation of articles by special description of quality or material, as contradistinguished from designation by a commercial name—
And is precisely within the observations of the Supreme Court in United States v. Klumpp (169 U. S., 209, at p. 216):
it will be perceived that the acts of 1890 and 1894 did not levy a duty on “worsted •dress goods,” eo nomine, nor on worsted dress goods by commercial designation, nor on worsted dress goods as distinguished from woolen dress goods; but a duty on dress ■goods, whether made of “wool, worsted, the hair of the camel, goat, alpaca or other animals.” The description is addressed to the quality and material of the goods, namely, women’s and children’s dress goods, made of wool, worsted, etc.
The principle then that the special designation of an article by its commercial meaning should prevail over general terms used in the same or a later act, has no application.
Indeed, this court has had occasion heretofore to declare that a tariff designation of an article directed to alternative conditions of .manufacture and related to all kinds thereof is descriptive and thereby manifests the intention of Congress that it was not intended to be varied by trade usage. In Habicht, Braun & Co. et al. v. United States (2 Ct. Cust. Appls., 457, 459; T. D. 32205), we said:
The provision, paragraph 281, seems to us essentially descriptive and not denomi-native. By its scope it expressly endeavors to cover all classes of filberts and all classes of walnuts, reaching out without limitation from both sides of the line of distinction set forth in the paragraph itself. It does not use a term “walnuts shelled,” • or a term “walnuts, not shelled.” It uses the phrase “walnuts of all kinds,” first, “not shelled” and second “shelled.” In the first place, the classes of walnuts are modified by the phrase “of all kinds,” indicating the comprehensive idea of Con-*59igress, and the limiting words “not shelled” and “shelled” are sufficiently broad to cover every description, kind, and class of walnut meats, without any limitation •as'to whether they are broken in one piece or two pieces or a greater number of pieces.
We think the internal evidences' of the paragraph itself would have justified the board in excluding all testimony going toward the point of commercial designation upon the ground, as set forth in the case of Newman v. Arthur, supra, that not only was there lack of sense, but its adjective character and descriptive force are peculiarly of that quality as to plainly indicate a broad general description upon the part ■of Congress of all classes of this merchandise, whether in the shell or out, regardless of condition.
It may be added that while the reasoning therein was predicated upon Newman v. Arthur (109 U. S., 132), it is fully within and •equally supported by Cadwalader v. Zeh (151 U. S., 171, 176).
This reasoning finds its confirmation in this record, which shows that it is impossible to establish by trade testimony a trade understanding as to any of these tariff designations even when involving only the simplest possible combination of the designative words here employed by Congress.
There were but two witnesses actually testifying upon this point, Mr. Pitcairn and Mr. Burgess.
Mr. Pitcairn:
Q. Was there, prior to October 3, 1913, a term used in your trade, plain white not ■ornamented, or plain white not decorated? — A. Not as a term; not the full term.
Q. That is what I mean. — A. No, sir; not to my knowledge.
Mr. Burgess testified:
Q. Mr. Burgess, prior to October 3, 1913, was there in trade a term plain white not ■ornamented?
General Appraiser Hay. Embracing that entire phrase, you mean?
Mr. Mtjlvaney. Yes, sir.
A. I don’t know that there was any general term embracing the entire phrase. There was plain white ware
Q. I am speaking of the phrase plain white not ornamented, or plain white not decorated. — -A. A descriptive term that would be used.
General Appraiser Hay' He asked whether there is any such term used in trade.
Witness. Not in general usage; no.
True, these witnesses did testify as to a trade understanding of the terms “plain white earthenware,” but as this court held in Seligmann et al. v. United States (6 Ct. Cust. Appls., 85; T. D. 35336), trade proof not within the words of the statute is not the necessary proof in such cases. The legislative designation here is much broader, involving factors in no wise covered by the proven trade term.
Moreover, it is most urgently submitted, that where it is manifested in any part of a tariff designation, or by the whole thereof, that Congress employed it in a clearly descriptive and not in a trade sense, the court should in no case, in part or as a whole, defeat that intention of Congress by opening up to trade proof the whole or any part of such a comprehensive unified tariff designation. For these reasons and those more fully expressed in the dissenting opinion in *60American Express Co. v. United States, suit No. 1947 (10 Ct. Cust. Appls., 275; T. D. 38680), I am unable to agree that said paragraph 79 is the subject of trade testimony. Upon the ground before stated, however, I agree with the order herein of affirmance.