CONCURRING OPINION BY
BARBER, JUDGE.Paragraph 408 covers fabrics not colored, while paragraph 279 covers those which are colored.
Therefore, to sustain importers’ contention they must establish that the merchandise is not colored.
Were the question to be decided de novo without regard to previous legislative history or judicial interpretation, the view might be entertained that the word “colored” in its common meaning, and that is the question here, as applied to fabrics, contemplates the coloring of substantially the entire surface of the fabric, and consequently that there must be an absence of an imparted color to constitute a fabric not colored. It seems, however, in view of the legislative and judicial history, as shown by the main opinion, that if a fabric is colored in part it must now for tariff purposes be regarded as colored. The color of the threads in question here is in striking contrast to that of the rest of the fabric, and in my opinion it causes the surface to present an appearance so different from what it would be if such color was absent that the ordinary observer could not say the fabric was not colored, but would say that it was partially colored or striped.
*372As I view it there is quite a distinction between this case and that of United States v. Bryant (10 Ct. Cust. Appls. 79; T. D. 38355). There the fabric had a single blue warp thread equally visible on both sides of the fabric, and about 1 inch from the edge. It appeared that the office of these threads was solely and merely as a helpful marginal guide line for operators in overlapping and sewing the widths together in making various things for which the importation was almost exclusively used, and that when so sewed the colored threads, generally speaking, were no longer visible; that they could be removed without appreciably impairing the integrity of the fabrics, and were not a necessary part of it. The Board of General Appraisers had held the cloth to be not colored. This court upheld that conclusion.
In the case at bar it appears that there are two colored double warp threads equally visible on both sides of the fabric and about an inch from each selvage. These threads are of such contrasting color with the rest of the fabric and of such width that at the hearing before the board counsel for both sides, as well as the only witness who testified (for importers) generally, and we think quite naturally, referred to them as a “stripe.” The testimony was to the effect that the merchandise was brought in primarily for tarpaulin cloths, to which it was partly devoted. When used in making tarpaulins the stripe served the purpose of a guide line in sewing the goods together. It was also, importers' witness said, sold by them for carpets, and when devoted to that purpose the stripe did not serve as a guide at all. An illustrative collective exhibit was introduced in evidence showing samples of the importation dyed for carpet purposes, and upon these samples the stripe is much less noticeable than upon the official exhibit. The testimony also showed that the threads constituting these stripes could not very well be removed without impairing the strength and integrity of the fabric.
In the Bryant case the board sustained the protest. Here it has been overruled, and I do not think importers have established such a state of facts as justifies their contention that the Bryant case is conclusive of the issue here. Assuming the principle of that case to be sound, I do not think it should be further extended.
In my opinion the determinative question is not whether the colored yarns form a necessary and substantial part of the article but rather whether they impart sufficient color to the surface of the fabric as to exclude the conclusion that it is not colored either partially or wholly.
In any event, I do not understand, in the absence of commercial designation, how a fabric which has colored stripes, such as the fabric here, upon its surface when imported can be said to be not colored at that time.
*373I therefore concur in the conclusion that the judgment below should be affirmed.