CONCURRING OPINION BY
SMITH, JUDGE.I concur in the conclusion reached.
The goods are represented by two exhibits, one of which, Exhibit 3, is a plain-woven fabric composed of uncolored jute yarns with the exception of a stripe three-eighths of an inch from the edge, into the warp of which stripe is woven six threads or yarns colored blue, and to that extent differing from the other threads or yarns composing the fabric. Exhibit 4, the other exhibit, differs from Exhibit 3 in the particular only that.the warp threads of the stripe are red instead of blue.
On the hearing before the board, Morris A. Goldman, president of the Milford Manufacturing Co., on behalf of the importer testified that • the importation was known as jute padding, and that it was used for padding or interlining men's and women’s coats and overgarments. He said that the- colored stripes in the cloth were woven into it for the purpose of identifying it to the trade as padding, and that when the padding was once sewn into a garment the stripes could no longer be seen and served no useful purpose. This witness also stated that goods of the same construction and of equal width might be used for other purposes than padding, although he knew of no such use. He said that since the passage of the tariff act of 1913 similar goods had been admitted free of duty under paragraph 408.
W. W. Plirtle, an examiner at the port of Boston, called on behalf of the importer, testified that the goods having a selvage containing six colored threads or yarns had been admitted free of duty since 1918, *379and that prior to that time his predecessor in office admitted free of duty like goods imported under the act of 1913.
On the evidence submitted to it the board held that the colored stripe was not included in the selvage of the cloth and that it constituted a material and essential part of the fabric, inasmuch as the colored threads composing it could not be withdrawn without destroying or impairing the usefulness of a part of the fabric at least. On that finding the board overruled the protest and the importer appealed.
The appellant contends first, that the colored stripe is an insignificant portion of the fabric inasmuch as it constitutes only three-eighths of an inch of the width of a fabric 22 inches wide, and the colored threads composing it are less than 3 per cent of the total warp threads in the cloth; second, that the colored threads do not embellish or ornament the fabric in any way and serve no purpose other than that of identifying a particular brand or class of cloth; and third, that administrative practice has established the classification of the goods as uncolored -jute fabrics.
Just what is a cloth colored has given rise to considerable apparent if not actual conflict of decision attributable in most cases to a peculiar wording of the particular statutes interpreted and in a few cases to a strict construction which took into account only the presence of color and declined to consider whether the color present embellished, decorated, or ornamented or advanced the cloth or made it more pleasing or attractive to the eye or desirable to the ultimate consumer by giving to it a tint, shade, hue, or color other than that which was natural to it.
And so we find that under a provision which laid a duty on cotton cloths colored, it was held that cotton cloths figured, striped, or checked by colored • threads, whether covering much or little of the surface of the fabric, were dutiable as colored cotton cloths. (Pars. 253 and 254, act of 1894, T. D. 17255; G. A. 3517; T. D. 24217; G. A. 5278.)
On the other hand a provision which laid a duty on bags or sacks made from plain woven fabrics of single jute yarns not colored, was held inapplicable to-bags having a colored stripe about an inch wide (T. D. 23286) and applicable to bags which contained a single colored thread along one side. (Par. 343, act of 1897; T. D. 23618.)
The board held that Jacquard figured goods having a thread different in color from the other threads and running straight across the back, but not appearing on the right side of the fabric, was not dutiable'under paragraph 387, act of 1897, as Jacquard figured goods having two or more colors in the filling. (T. D. 22178.) Judge Townsend of the Circuit Court reversed that decision and decided that although the colored threads appeared only on the back of the *380cloth, they were nevertheless “colored threads in the filling” and therefore came within the express terms of the statute.—Johnson v. United States (123 Fed. 997).
The board evidently regarded Judge Townsend’s ruling as a reversal not only of their holding in T. D. 22178 but also of that part of T. D. 23618 which held that bags having a single colored thread along one side were not colored, and therefore the board ruled that a single colored ■ thread whether on the side of jute bags, or on the edge of cotton cloth constituted a colored fabric. (T. D. 23309; T. D. 25599.) Indeed, Johnson v. United States, supra, exerted such a potent influence that the board materially modified its earlier rulings as to colored cottons and held that cotton cloth was colored even if the color effect was produced by the introduction of extra threads; that is to say, threads other than the warp and weft threads. (T. D. 27762; T. D. 28447.) These decisions were reversed, however, by the Circuit Court and that reversal was affirmed by the Circuit Court of Appeals.—United States v. Rusch et al. (160 Fed. 279); United States v. Rusch & Co. (167 Fed. 523). In order to meet the decision of the Circuit Court and the Circuit Court of Appeals, Congress passed paragraph 320 of the act of 1909, which defined cotton cloth dyed or colored to be—
all cotton cloth * * * which has any dyed, colored * * * or printed threads in or upon any part of the fabric.
From the legislation on colored cloths and fabrics with colored threads and the judicial interpretations of it, it is apparent that decisions construing a provision for fabrics having colored yarns or threads in the filling or for cloth having colored threads or yarns in any part of the fabric, can not be regarded as useful in determining the meaning of a provision for cloth colored. In other words, a cloth which has a colored thread or threads in it is not necessarily a colored cloth, although it might well be regarded as a cloth with colored threads in the filling or as having colored threads in or upon some part of the fabric.
In my opinion a colored cloth is one which, when ready for its final use, is embellished, decorated, ornamented, advanced, or made more pleasing or attractive to the eye, or which may be more desirable to the ultimate consumer by reason of a tint, shade, hue, or color other than that which is natural to it.
The colored yarns in the cloth in issue are so placed that they are apparent when the fabric is finally prepared for its ultimate use, and beyond question the colored stripes formed by such yarns, whether introduced for the purposes of identification or not, do substantially embellish, decorate, and ornament the cloth of which they are a part and give to the fabric ready for use a character and pleasing ■ *381effect not possessed by a clotb without such yarns. - In my opinion such a fabric is colored and therefore within the terms of paragraph 279.
The contention of the appellant that the stripes are trade marks- or brands to identify a particular kind of cloth may be correct; nevertheless there is nothing about them which reveals that that is their purpose or which differentiates them in any way from colored stripes designed to embellish, and that suffices to bring the goods within the designation of jute fabrics colored. To hold otherwise would mean in principle that the purpose of the manufacturer, not apparent from the goods themselves, rather than' their true nature and character, determines classification, and we are not ready to go that far, especially as any such ruling as that might finally result in transferring to the free list all single jute yarn fabrics ornamented with colored stripes or colored figures.
It is argued that the padding when introduced into the lining of overcoats and overgarments is concealed from view and that the stripes on the padding can not be regarded as an embellishment or an ornament to the goods inasmuch as they can not be seen. That argument is not sound, inasmuch as the stripes on the goods when prepared and ready for their ultimate use-are á visible'embellishment of the cloth. Moreover, there is nothing in the record which would warrant the conclusion that the fabrics are used exclusively for padding. Indeed, importer’s witness, Goldman, testified that similar goods might be used for other purposes than padding, although he knew of no such use.
The claim that it was long the administrative practice to admit as uncolored jute padding of the kind here in controversy can not be sustained, inasmuch as the goods themselves disclose that they are ornamented with a colored stripe and .that therefore they are colored jute cloth. Established administrative practice, especially if long continued, should be accorded great weight in reaching a conclusion as to the proper construction of a statute and the true legislative intention.—United States v. Philbrick (120 U. S. 52, 59); Psaki Bros. v. United States (3 Ct. Cust. Appls. 479; T. D. 33122); United States v. Borgfeldt & Co. (7 Ct. Cust. Appls. 367; T. D. 36909); Vandegrift & Co. v. United States (8 Ct. Cust. Appls. 1, 8; T. D. 37121). But the established administrative practice can not be invoked to defeat the legislative will when clearly expressed or to give goods a classification not warranted by their true nature, character, or commercial designation.—Pacific Creosoting Co. v. United States (1 Ct. Cust. Appls. 312, 315; T. D. 31407); Lloyd Co. v. United States (9 Ct. Cust. Appls. 280, 284; T. D. 38217); Pittsburgh Plate Glass Co. v. United States (2 Ct. Cust. Appls. 389, 391; T. D. 32162); Bloomingdale Bros. v. United States (3 Ct. Cust. Appls. 204, 205; T. D. 32530); Robertson v. Downing (127 U. S. 607, 613).