*17DISSENTING OPINION
Mollison, Judge:I am constrained to dissent from tbe conclusion reached by my colleagues with respect to tbe principal claim made by tbe plaintiff in tbe case at bar, i. e., tbat tbe wool in question consists of tbe finer part sorted from Cordova wool and is dutiable at 14 cents per pound of clean content under tbe provision for—
Wools: * * * Cordova * * *, Sorted * * * not scoured * * *
in paragraph 1101 (a) of tbe Tariff Act of 1930, as modified by tbe Argentine Trade Agreement, T. D. 50504.
There seems to be no dispute, from tbe evidence offered, tbat the wool in question consists of sortings, or sorted wool, the real dispute centering around tbe question of whether it is sortings of Cordova wool or of other wool. On this point tbe testimony of tbe witnesses for both sides is irreconcilable, those for tbe plaintiff identifying the origin of tbe sortings as Cordova wool, and those for tbe defendant identifying it as wool other than Cordova.
Tbe majority has considered tbe testimony of tbe witnesses and has concluded tbat tbe preponderance in weight thereof establishes tbe defendant’s contention. Tbe writer, too, has carefully studied tbe testimony of each witness, both with , respect to qualifications and background, as well as with respect to tbe direct issue, and on tbe latter factor is persuaded to tbe opposite conclusion. It appears to tbe writer tbat tbe witnesses for both sides were equally qualified to give expert testimony on tbe point in issue. Tbat a difference of opinion resulted is not uncommon in cases where both parties rely upon tbe opinions of expert witnesses in presenting their cases.
There is, however, a factor in this case which in my opinion compels greater probative force to be attached to tbe testimony given on behalf of tbe plaintiff than to tbat given on behalf of tbe defendant. Tbe defendant’s case is largely predicated upon testimony given by its witnesses to the effect tbat Cordova wool is never sorted, and tbe majority has held tbat—
* * * the finer and coarser portions [of Cordova wool] are not and cannot be sorted as a commercial undertaking.
If this position is adopted, it must follow tbat Congress did a vain, nugatory, and useless act in providing in paragraph 1101 (a) for “Wools: * * * Cordova * * *, sorted * * *,” .for tbe aforementioned testimony and tbe bolding of tbe majority are a denial of tbe existence of tbe very commodity provided for by tbe tariff provision just quoted.
Such a construction is, of course, to be avoided. In a somewhat similar situation in tbe case of United States v. Baxter et al., 9 Ct. Cust. Appls. 99, T. D. 37975, our appellate court said:
*18The contention of the importers and the holding of the board would lead to the result that although Congress saw fit to make provision for a duty upon the poles designated, there can be no room for the application of this provision because they are not sufficiently advanced to fix their use for any one of the purposes indicated. It does not need the citation of authority to affirm the rule that a construction which will render nugatory the express provisions of a statute is not to be indulged except in cases where no other reasonable construction is open.
The testimony offered on behalf of the plaintiff is consistent with and gives effect to the language of the tariff provision, and I am satisfied that considered in relation thereto it establishes that the commodity at bar is covered by the said provision.
In my view, therefore, judgment should issue sustaining the claim made by amendment of the protest for duty at the rate of 14 cents per pound of clean content under paragraph 1101 (a) of the Tariff Act of 1930, as amended by T. D. 50504.