DISSENTING OPINION
Lawrence, Judge:I regret that I am unable to concur in the conclusion reached by my associates in this case.
The question for determination is whether the imported fabric is finished or ornamented with more than one row of straight hemstitching adjoining the hem.
The testimony of the witnesses, with special reference to the number of rows of straight hemstitching on illustrative exhibit A, representing the items in dispute, is so conflicting that little real assistance is to be gained from it.
’ Three witnesses testified for the plaintiff and eight for the Government. Of the eight witnesses who testified on behalf of the Govern*92ment, three (Jacobs, Smith, and Johnson) gave testimony of little or no value. However, I do not think that the preponderance of competent evidence weighs in favor of the plaintiff. After all, it is largely a matter of opinion whether the fabric has one or two rows of straight hemstitching adjoining the hem.
While there is no dispute as to the method employed to produce the hemstitching on illustrative exhibit A, there is, as indicated above, a sharp division of opinion as to the actual number of rows of straight hemstitching thereon. There is no question that hemstitching of this sort, which is known as punto quadro, has two rows of drawn threads as a necessary feature.
The witness Massabni, a member of the importing firm, first testified on cross-examination that the hemstitching on illustrative exhibit A constituted one row of straight hemstitching, based largely upon the fact that the operator who performed the stitching to finish the decoration on the fabric did so with one thread and in one continuous operation. This criterion was also applied by the other two witnesses for the plaintiff. However, for reasons which will be stated infra, I do not regard this as a practical or safe test for determining the question at issue. As a matter of fact, the witness Massabni, after testifying that the stitching on illustrative exhibit A amounted to one row of hemstitching, later admitted that there were two rows, thereby evincing a confusion of mind as to whether there were in fact one or two rows of straight hemstitching.
A majority of the eight Government witnesses testified that there were two rows of hemstitching.
In these circumstances, much light is thrown upon the solution of the question before the court by an examination of the various exhibits which were introduced in evidence, together with authoritative literature on the subject, notably the “Encyclopedia of Needlework” by Theresa De Dillmont, published in 1890 (cited in defendant’s brief), which will be referred to later in this opinion. This book has been recognized as an authority in earlier cases. See United States v. Hamburger Levine Co., 5 Ct. Cust. Appls. 217, 220, T. D. 34382; H. A. Caesar & Co. v. United States, 52 Treas. Dec. 237, T. D. 42417; and F. M. Jabara & Bros. v. United States, 58 Treas. Dec. 375, T. D. 44300.
As a matter of fact, the majority opinion states that—
* * * . Based upon an examination of the sample in this ease we would have been inclined to hold that the involved article contained two rows of straight hemstitching, but for the decision in Fallani, supra, following which we hold that the involved merchandise contains but one row .of straight hemstitching.
It is quite obvious from a careful examination of illustrative exhibit A that if the hemstitching had been finished with but one row of drawn threads, there would have been one row of straight hemstitching. *93Consequently, it results in a strange anomaly to hold, as does the majority, that the stitching on illustrative exhibit A, to finish the two rows of drawn threads, creates but one row of straight hemstitching, merely because the work was performed in one operation with one stitching thread. An inspection of the exhibit under a magnifying glass clearly shows a line of stitching running the full width of the lower edge of the upper row of drawn threads, and likewise another line of stitching running the entire width of the upper edge of the lower row of drawn threads. Each stitch groups a cluster of vertical threads to form the holes or openings which are clearly discernible in both rows. The effect is more apparent from an examination of line “4” on illustrative exhibit G. Had the designer of illustrative exhibit A started out to produce one row of hemstitching with one row of drawn threads and finished it, and later decided to draw another row of threads and finish it, can it be doubted that two rows of hemstitching would have been created? In my opinion upon the facts of record, it is a matter of no consequence that the two rows of drawn threads in this case were finished in one continuous operation with one thread. The effect produced was two rows of hemstitching, which would be more evident upon examination of illustrative exhibit A if the stitching had been done with a dark, rather than with a light, colored thread.
While it is true that the work performed on illustrative exhibit A produced one row of the pattern known as punto quadro, nevertheless, in my judgment, it resulted in two rows of straight hemstitching. It is this circumstance which may have confused the witness Massabni, referred to earlier in this opinion. He may have had the preconceived notion that one row of punto quadro was the equivalent of one row of straight hemstitching, just as in United States v. Fallani & Cohn, Inc., 30 C. C. P. A. (Customs) 141, C. A. D. 226, the same witness testified that one row of the pattern known as gigliuccio constituted one row of straight hemstitching. (See record in Customs Appeal No. 4406.) In that case our appellate court ruled that gigliuccio was merely a design or pattern of hemstitching, but that in its fabrication more than one row of straight hemstitching was created, even though it was but one row of gigliuccio.
Plaintiff stresses the fact that in the Fallani case, supra, the appellate court pointed out “that the evidence clearly establishes that if the thread introduced in either of the outer rows is removed there would remain ‘one row of straight hemstitching’,” and that “Therefore, as the outer rows are independent of each other, the involved napkins have at least two rows of straight hemstitching.” [Italics supplied.]
Naturally, the court was deciding that case on the particular facts before it. However, I do not believe the court, by the language above quoted, intended to lay down a definitive rule designed to *94cower all cases to determine tbe number of rows of straight hemstitching. Conceding “that if the thread introduced in either of the outer rows is removed there would remain ‘one row of straight hemstitching’,” as stated in the Fallani case, supra, it is equally true that by removing the stitching thread in the fabric in the present case, nothing would remain but two rows of drawn threads.
As I view it, however, the question is not what would remain if the finished hemstitching were dissected and the stitching thread removed, but rather what is the condition of the fabric in its imported state? Of course, had the stitching thread been removed before importation, the fabric would not have been hemstitched at all. The fact is, however, that it was imported in a hemstitched condition, and I deem it a matter of no importance whether the two distinct rows of hemstitching may have been created with one thread in one operation or with two threads in two operations. The effect of the stitching was to produce two rows of straight hemstitching adjoining the hem.
Interesting and helpful sidelights are thrown upon this subject by reference to the “Encyclopedia of Needlework,” supra. The text of pages 25 to 27, inclusive, is graphically illustrated with figures clearly outlining various types of hemstitching, beginning with “Eig. 55. Single hem-stitch” on page 24, to and including “Fig. 68. Single three-rowed open work” on page 27. In describing “Fig. 68” the author states in part: “Make six rows of hem-stitching, as in fig. 55; the first and sixth rows to serve as a finish, above and below.” [Italics supplied.]
_ Whether or not the “six rows of hem-stitching” above referred to are created with the use of six stitching threads or a lesser number is of no significance, according to my theory of the case. In any event the finished product has six rows of hemstitching.
It will be recalled that in an earlier case certain cotton gloves with lace cuffs were crocheted with a hook in one continuous process from a spool of thread. Obviously, by removing the thread from the cuff the article would no longer be in part of lace. . However, the court was apparently concerned with the condition of the article as it entered our commerce, and accordingly held that it was an article in part of lace. Alfred Kohlberg, Inc. v. United States, 27 C. C. P. A. (Customs) 354, C. A. D. 111.
The language of paragraph 1529 (a) upon which the attention of the court is focused, reads: “not including one row of straight hemstitching adjoining the hem.” There is nothing in that phraseology to suggest that Congress was concerned with the method of creating “straight hemstitching,” but rather emphasized the number of rows of such hemstitching adjoining the hem. The statute is silent as to the number of threads used oy the number of operations employed.
To adopt the theory of the plaintiff might well produce an unconscionable result. That is, if a fabric like illustrative exhibit A, finished *95with, one stitching thread, were to be regarded as containing but one row of straight hemstitching, it would logically' follow that if the hemstitching were performed with two independent stitching threads it would be recognized as having two rows of straight hemstitching adjoining the hem. In the first example, the rate of duty would be 40 per centum ad valorem, as claimed by plaintiff, and in the second, the rate of duty would be 125 per centum greater, or 90 per centum ad valorem under said paragraph 1529 (a). Surely, the Congress never contemplated such an absurd result, and the statute should be so interpreted, if it can-reasonably be done, to avoid it.-
' In my judgment, based upon the record in this case, the imported fabric has “more than one row of straight hemstitching adjoining the hem” within the spirit and intent of paragraph 1529 (a), supra, and that this conclusion is not in conflict with that reached by our appellate court in the Fallani case, supra. To hold otherwise would, I believe, produce a result impracticable of operation and confusing in the administration of the statute. With respect to the present hemstitching I. am more concerned with the effect produced than I am with the method by which it was accomplished.
In United States v. Douglas & Berry et al., 6 Ct. Cust. Appls. 100, T. D. 35342, the court was deciding what was and what was not a plain woven fabric. In the course of its opinion it said:
An effort is made to distinguish the present case from the later White case, supra, by'showing that in that case the article was produced by the use of a Darby attachment. We have already sufficiently answered this contention by what has been stated, namely, that the determining factor is the result produced in the fabric by the weave and not the instrumentality employed. [Italics supplied.]
In effect, the court held that the goods before it were so woven as to produce a distinctly discernible border the whole length of the piece, and that such border, whether in color or plain white, constituted a figure; and that irrespective of the particular machinery employed in producing such effect the goods were figured and not plain woven.
Another case involving woven figured cotton cloth was Mills & Gibb Corporation v. United States, 14 Ct. Cust. Appls. 197, T. D. 41703. The court said:
It is undisputed that the striped effect is not occasioned by either a difference in size or color of the threads, but that it is solely due to the fact that in one stripe the thread is twisted to the right and in the other stripe the thread is twisted to the left.
In Wilson & Son, Inc. v. United States, 14 Ct. Cust, Appls. 234, T. D. 41717, this court had under consideration several different kinds of cloth involving a determination of the issue as to what constituted woven-figured cloth, and there we held that whether a cloth is figured or not is judged by its appearance to the eye. Citing Naday & Fleischer, G. A. 8405, T. D. 38606, 39 Treas. Dec. 43, and United States v. Douglas & Berry, 6 Ct. Cust. Appls. 100. It was there held that a stripe is a figure, following the dictionary definitions of a figure and quoting from certain decisions therein cited. [Italics supplied, except citations.]
*96In Wilson & Son (Inc.) v. United States, 14 Ct. Cust. Appls. 234, T. D. 41717, the court quoted with approval the following extract from the decision in Naday & Fleischer v. United States, T. D. 38606-G. A. 8405, 39 Treas. Dec. 43:
Without here deciding that the lines or stripes in the cloth produced by the omission of certain warp and weft threads in the .weaving are figures in themselves, it is only too obvious that the checks formed by these open horizontal and vertical spaces are figures within the definition of the term as set forth in said G. A. 8089. It is true in the present case a dobby loom was used, while the cloth in G. A. 8089 was woven on a plain loom; but in both instances the figures have been produced by certain mechanical manipulations in the weaving process, and, as said by the board in G. A. 7222 (T. D. 31588), “the effect •produced and not the means of producing the effect must he the guide and criterion to determine whether or not a fabric is a plain woven fabric.” [Italics supplied.]
In determining the question as to what is embroidery, this court in Charles F. Waentig v. United States, T. D. 26853, 10 Treas. Dec. 538, reasoned as follows:
* * *. And while it may be true that certain stitches; when combined in numbers in pursuance of a design, result in such an ornamentation as might properly be characterized embroidery, nevertheless one or a number of the same stitches standing alone, or devoted to some other purpose * * * would not of necessity result in the production of that which may properly be termed embroidery. So that it would appear to us that in the determination of that which is and that which is not embroidery we must of necessity be guided by the effects produced in the particular case, the design which is produced by the work in question, and its effect upon the eye as to whether or not ornamental in pursuance of a design, rather than by the character of the machinery used or the nature of the stitch employed. [Italics supplied.]
The latter case was cited with approval in Kayser & Co. (Inc.) et al. v. Pevny; United States Impleaded, 13 Ct. Cust. Appls. 479, T. D. 41368.
Upon the established facts and the law applicable thereto I am of the opinion that the claim of the plaintiff should not be sustained.