DISSENTING OPINION
Graham, Presiding Judge:When this cause was originally heard, I concurred in the majority opinion. Upon a rehearing, however, and upon a more careful examination of the record and issues involved, I regret to find myself out of harmony with the judgment heretofore entered herein by this court and the reasons stated therefor in the opinion. My reasons, briefly stated, are these:
The collector returned the merchandise herein for duty under paragraph 1402 of the Tariff Act of 1922, as soccer football shoes. In order to come to this conclusion and make the classification, it is a presumption of law, well recognized by us heretofore, that he found all the elements necessary to make such classification. United States v. Vitelli & Son, 5 Ct. Cust. Appls. 151; United States v. Stone & Co., 13 Ct. Cust. Appls. 233, T. D. 41180; United States v. Kaufman & Co., 14 Ct. Cust. Appls. 264, T. D. 41881; United States v. Chichester & Co., 14 Ct. Cust. Appls. 71, T. D. 41579. One of these was that the merchandise in question was necessary to the safe, proper, and efficient playing of one .of the ball games mentioned in said paragraph 1402. Cruger’s (Inc.) v. United States, 12 Ct. Cust. Appls. 516.
There is nothing in the record to impeach or contradict this finding of fact which the collector thus is assumed to have made.
It will therefore necessarily be assumed, as a matter of law, that the soccer football shoes imported were necessary to the safe, proper, and efficient playing of one of said ball games, and as such are equipment within the meaning of said paragraph 1402.
Paragraph 1402 is a paragraph in which the classification is based upon use. It will be observed that the particular language involved here is “other equipment, such as is ordinarily used in conjunction therewith in exercise or play.” We have held on numerous occasions, and it is undoubtedly the law, that a classification by use will prevail over a classification not so made, even though the latter be an eo nomine designation. Magone v. Heller, 150 U. S. 70, 73; United *185States v. Snow’s, etc., 8 Ct. Cust. Appls. 351; Drakenfeld v United States, 9 Ct. Cust. Appls. 124.
The majority opinion goes upon the theory that the language of paragraph 1607 “Boots and shoes made wholly or in chief value of leather” must be held to be more specific than “other equipment, such as is ordinarily used in conjunction therewith,” because the latter language is limited and restricted in its operation by the words “not specially provided for.” This conclusion, I believe, is erroneous. It has been uniformly held that where the words “not specially provided for” are thus used, they are only to be taken as a limitation of the words with which they are used when compared with some other equally specific provision of the statute not thus containing such words. Drakenfeld & Co. v. United States, 9 Ct. Cust. Appls. 124; Altman & Co. v. United States, 11 Ct. Cust. Appls. 102; Comstock & Theakston v. United States, 12 Ct. Cust. Appls. 502.
With this rule of law in mind, we find that the limitation “not specially provided for” refers to balls and equipment for ball games and physical exercises, and should only be held to apply to the same, if they be elsewhere named in the statute That some of these are so named, we find by reference to paragraph 1413, enumerating billiard, pool, and bagatelle balls. The words “boots and shoes” can not, in themselves, be held to indicate any such equipment. If this paragraph included specifically such terms as “football shoes” or “soccer shoes,” then the paragraph would “otherwise specially provide for” some of the equipment referred to in said paragraph 1402. As paragraph 1607 fails to do this, I am constrained to come to the conclusion that the “not specially provided for” clause in 1402 was not intended to extend to paragraph 1607, and like paragraphs, but to only such as referred specifically to balls and equipment such as are alluded to in paragraph 1402.
To illustrate where the majority opinion would lead us, take the following illustration: Leather gloves are specifically made dutiable by paragraph 1433, according to their lengths. Under the majority opinion, baseball gloves or catchers' gloves, sometimes of enormous sizes, made and used for no other purpose than for playing baseball, would not be dutiable as equipment for playing a ball game under paragraph 1402, but as gloves under 1433. To mention this is to convince the mind that the Congress had no such construction in mind when it framed paragraph 1402, manifestly designed to be a sporting-goods paragraph. To so construe the statute does violence to the legislative intent.
For the reasons above given, I am of the opinion the judgment of the court below should be reversed.