*216DISSENTING OPINION
Oliver, Presiding Judge:I feel constrained to dissent from the decision of my associates herein sustaining the protest on the leads classified as “leads, commonly known as refills,” notwithstanding the fact that in so doing I must reverse the position taken by me in J. S. Staedtler v. United States, 8 Cust. Ct. 357, C. D. 640, from which no appeal was taken. In that case, the record of which is incorporated herein, I joined with Judge Walker in sustaining the protests. The same issue on the same merchandise is here re-presented for our consideration in a record containing additional testimony o,n behalf of the Government. On the entire record I am of opinion that our position in the Staedtler case, supra, should be reversed and judgment rendered overruling the protests as to said merchandise.
The leads under consideration measure .0465" in diameter by 6%" in length. The entire record establishes that this diameter lead is used exclusively as refills for mechanical pencils. It is dedicated to such use exclusively and can be used for no other purpose. The diameter controls in determining what is a refill lead. . It is also made clear that refill leads as used in mechanical pencils, and as sold to the consumer, are in lengths measuring 1%", 4", and 5". The imported leads measure 6%", longer than any mechanical pencil now on the market, but this length is cut after importation into five 1%" lengths. The entire dispute centers around the wording of paragraph 1549 (b) which provides for:
* * * leads, commonly known as refills, * * * not exceeding two inches in length, 10 cents per gross, and longer leads shall pay in proportion in addition thereto; * * *.
The leads before us are “longer leads” and have been assessed with duty “in proportion in addition thereto.” The sole remaining question is whether these “longer leads,” too long for use as refills as imported, are “commonly known as refills.” I am of opinion that they are. It is my belief that these leads regardless of length when of the refill diameter are commonly known as refills even though not yet cut to the proper pencil size. I am further convinced that Congress intended the diameter and not the length to be the determining factor as to whether or not leads are dutiable as refills. When the corresponding paragraph in the Tariff Act of 1922 (par. 1452) was under consideration, it appeared at one time as:
* * * leads not exceeding six one-hundredths of one inch in diameter and not exceeding six inches in length, and commonly known as refills * * *.
There is, and so far as appears from the record, there was no pencil capable of taking a 6-inch refill. This limitation in length was subsequently removed and as the provision appeared in the tariff acts *217of 1922 and 1930, no limitation in length was made bnt in its final form the provision in both tariff acts was that:
* * * longer leads [than two inches] shall pay in proportion in addition thereto * * * . [Italics supplied.]
Moreover, in United States v. A. W. Faber, Inc., 16 Ct. Cust. Appls. 467/469, T. D. 43211, decided in January 1929, our appellate court interpreted this portion of paragraph 1452, Tariff Act of 1922, as meaning: “leads * * * of any length.” [Italics supplied.] While the issue of length was not before the court in the Faber case, the fact that it so interpreted the paragraph, coupled with the fact that Congress reenacted paragraph 1549(b) in the identical language, amounts, in my opinion, to legislative sanction of judicial interpretation. Congress could readily have limited the length if it did not mean “any length” without restriction. There is nothing ambiguous about the meaning of this paragraph as I see it. Leads of this diameter arc dedicated to use as refills in mechanical pencils. They have no other use. They are bought and sold and “commonly known” as such. They are not further manufactured or manipulated after importation. There seems no logical reason why these special diameter leads 67A" in length are not, for tariff purposes, refills even though they must be cut into smaller pieces for actual use. There is nothing in the wording of the paragraph which would indicate that by the use of the words “longer leads” Congress meant “longer leads but not longer than five inches.”
As to the limitation caused by the phrase “commonly known as,” I do not consider the Stone & Downer case (274 U. S. 225) as controlling to the contrary. In that case the court said (page 238):
The exact question is whether paragraph 18 includes in the term clothing wool, long staple or combing wool as well as short staple or carding wool. They are both used in clothing. [Italics supplied.]
In the present case these leads are not used both for refills and for other purposes. They are dedicated to the sole use as refills.
I am further persuaded that the testimony of the many witnesses testifying for the defendant was not an attempt to establish a trade meaning different from the common meaning but rather to establish the common meaning.
I am of opinion that our holding in the Staedtler case (8 Cust. Ct. 357, C. D. 640) should be reversed and the protests herein overruled as to the merchant]ise classified as “leads, commonly known as refills” under paragraph 1549 (b), Tariff Act of 1930.