DISSENTING OPINION BY
BARBER; JUDGEI concur in the judgment of the majority so far as it relates to the bone bead necklaces covered by protests 972395 and 968918.
I also agree that the collector’s classification must stand, unless successfully attacked by something contained in the stipulation.
I think the facts stated in the stipulation that the component materials are of bone or ivory, establish that the merchandise is not commonly known as jewelry. It is not claimed to be commercially so'known.
As I understand the majority opinion, it rests upon the assumption that the insertion of the term, “finished or unfinished, of whatever material composed,” in paragraph 1428 of the act of 1922, which was not in the jewelry paragraph, 356, of the act of 1913, demands that the merchandise here be classified as jewelry, in order to give effect to the new language of the statute.
From this view I dissent. I assume, without discussion, that the word “jewelry” in the common: understanding, means an article that is ornamental, the primary and dominant use of which is for persona^ adornment. United States v. European Watch Co., 11 Ct. Cust. Appls. 363, and cases cited.
If, therefore, the interpretation adopted in the opinion of the majority in this case be sound, it follows that every article, the primary and dominant use of which is for personal adornment, is jewelry. Upon this theory there is no escape from the conclusion that any article made of lead, iron, glass, paste, wood, leather, gelatin, celluloid, fur, hair, feathers, seeds, grass, natural or artificial flowers, as well as circlets of ribbon, velvet, or other fabric worn by women upon the head or around the neck, if worn for personal adornment only, must now be classified as jewelry in the common understanding.
*188It seems to me that such a result is so inconsistent and absurd that it should not be imputed to the legislative body and that had Congress so intended, it would have clearly so indicated.
It is common knowledge that caprice, whim, or fashion dictates the use, for personal adornment, of a great variety of articles composed of a very wide range of materials. Such use is very often transitory. From this it follows, under the views of the majority, that the common meaning of the word “jewelry” for classification purposes, will be as unstable as the caprice, whim, or fashion that dictates its use.
If Congress had intended that all articles used chiefly for personal adornment,-“of whatever material composed,” should be deemed to be jewelry, it were easy for it to have said so and thereby avoided all questions of ambiguity.
The rule that effect must be given, if possible, to all the language of the statute, is satisfied in this case by applying the term “ of whatever material composed” to unfinished jewelry. In addition, we know that unnecessary language is often employed out of a superabundance of caution, resulting in tautology. Such is the case here, if the majority view be sound, because, grammatically,, the quoted term applies to jewelry commercially so known.
In this connection it will be remembered that when a doubt arises as to the interpretation of a statute imposing taxes, the taxpayer has the benefit of such doubt.
It needs not the citation of authority to the proposition that the great fundamental rule in interpreting statutes is to ascertain and, if possible, give effect to the intention of the legislature.
It is my opinion that, when analyzed, the language of the statute itself does not justify the interpretation given thereto: In determining the meaning of additional or amendatory language employed in the reenactment of an existing statute, it is always proper, and some times necessary, to consider what the statute was before the new language was inserted therein.
Under paragraph 356 of the act of 1913 the term “jewelry commonly or commercially so known” meant that any article, regardless of the material of which composed, was dutiable as jewelry if established to be commercially known as such. Hence the phrase “of whatever material composed” added nothing to the force of the expression “jewelry commercially so known;” that is, it was not an amendment to or change of the law then in force. The word “finished” added nothing to the meaning of paragraph 356, because, in the absence of that word, a thing, to be commonly known as jewelry, must of necessity have been finished. Hence the term “jewelry commonly or commercially so known,” in paragraph 356, covered all finished jewelry, of whatever material composed, because what was not commonly known as jewelry, if jewelry, would, undoubtedly, be commercially so known.
*189There was no provision in the act of 1913 for unfinished jewelry. Mamluck & Co. v. United States, 6 Ct. Cust. Appls. 556.
From the foregoing I conclude that the obvious and real intent of Congress, in using the new language, was to amend the earlier statute by providing that unfinished jewelry, of whatever material composed, should be classified thereunder. In other words, that the actual amendment made was the provision for unfinished jewelry, of whatever material composed. In this connection it was quite natural for the sake of euphony and to balance the word “unfinished” to use the superfluous word “finished.”
The only foundation, therefore, as I see it, upon which the interpretation given by the court to the term “of whatever material composed” can rest is the punctuation inserted in connection with the new language employed.
It is unnecessary to discuss that subject in view of the well-settled rule that punctuation must yield to the obvious intent of the legislative body.
As I understand the main opinion, it holds that the classification of the merchandise as jewelry, implies that the collector found the same to be jewelry commonly so known, and that such classification immediately raises a presumption of correctness that it is commonly so known, which requires evidence to refute it, in the absence of which such classification must be upheld by the court.
I find myself unable to agree with that conclusion or to attach to the collector’s action such presumption of correctness. The term, “jewelry commonly so known” means, as I view it, jewelry as that word is commonly understood. That the court has final and ultimate power and that it is its duty to determine such meaning, as matter of law, I have no doubt. Sonn v. Magone, 159 U. S. 417.
Of course, the collector may give his opinion as to this, as well as any other question of law, but when his action in that respect is challenged and comes before us for review, there is no presumption that he has correctly-construed the statute. For the court to hold otherwise is to abdicate its authority and avoid performing its duty.
To use some extreme illustrations which, however, test the principle, could it be held, if the collector classified an ordinary hat, dress, coat, shawl, a pair of shoes or gloves, as jewelry, that there was any presumption arising from such act that any such article was jewelry?
It is said in the main opinion, in substance, that it does not follow that every article of personal adornment, such as a ribbon or a feather ornament, becomes jewelry. But it is easy to suppose that a case may come here in which either of these articles, concededly worn for personal adornment, had been assessed as jewelry. Would the court say, no proof being offered in the case, that they were such? Or, to go a step further, but still keep within the principle, if a small *190piece of fur worn around the neck, a necklace of natural flowers, a bracelet of -grass fastened with, a wooden button,' a daisy chain worn by a school girl returning from Canada, all concededly used and worn only as articles of personal adornment, were classified as jewelry, would the court uphold that classification, there being no other evidence in the case whatever?
I would affirm the judgment below:
Smith, Judge, concurs in the dissenting opinion: