DISSENTING OPINION
Mollison, Judge:I regret that I cannot concur in either the reasoning or the conclusion reached by my associates in this case, and, in so doing, I wish particularly to express my dissent from the view adopted by the majority that in the interpretation of the language *189used in paragraph 28 (a) a “broad application” is necessary in order to give proper expression to the congressional intent. As I understand the majority opinion, a “broad” view is taken of the term “medicináis,” as found in paragraph 28 (a), as a result of which there is included thereunder a substance which, by implication, the majority has found would otherwise not be included.
I take note of the provisions of subparagraph (i) of the said paragraph, requiring classification under the coal-tar paragraphs of articles which are within the terms of the said paragraphs, as well as of paragraphs 1, 5, 37, 39, 60, 66, 82, or 1687, and I conceive this to be the limit of statutory direction with respect to classification of imported merchandise covered by those paragraphs.
I do not find any legislative intent otherwise made manifest, either expressly or by necessary implication, which would require the making of an interpretation of the language of the paragraph so as to include therein anything which does not take classification thereunder either directly or by similitude or by the application of the ordinary rules of statutory construction.
The primary issue is simply stated: Is homatropine hydrobromide a medicinal within the meaning of that term as used in paragraph 28 (a), supra?
In assuming the negative of the issue thus stated, the plaintiff contends that the term “medicinal,” as used in paragraph 28 (a), is a designation by use and is subject to the well-settled rule of customs law that where use is made the test of classification, it is the chief use of the article or substance that controls. I do not understand that there is any question but that the term “medicináis” is a designation by use, and, as the word “use” or a derivative thereof is not contained therein, it is that type of use designation which has been called an eo nomine designation by use, or suggesting use.
Citing various lexicographic and judicial authorities, plaintiff contends that the term “medicinal” is limited to those articles or substances chiefly used for the prevention, cure, or alleviation of disease. The majority has found, and I agree, that the record shows that the chief use of homatropine hydrobromide is as a mydriatic and a cycloplegic in connection with the examination of the eyes. In my view, the record also shows conclusively that in such use it is used as a diagnostic material and performs no preventive, curative, or alleviative function. I would, therefore, find that the chief use of homatropine hydrobromide is not as a medicinal.
The majority has held, however, based upon a construction of the term “medicináis,” as found in paragraph 28 (a), supra, first advanced in the case of Bayer Co., Inc. v. United States, 13 Cust. Ct. 6, C. D. 859, that because Congress used the term “suitable for medicinal use” in connection with six of the twelve named substances which in series *190precede tbe more general language “and other medicináis” in paragraph 28 (a), the legislators evinced a purpose to embrace within the term “medicináis” any substance having preventive, curative, or alleviative use in the treatment of disease, even though such use be not the chief use of the substance.
This interpretation of the general term as embracing substances of the same class or general nature as the particular substances which are modified by the term “suitable for medicinal use” is not stated to be based upon the application of the rule of statutory construction, known as ejusdem generis, but is based, apparently, upon a concept of the coal-tar provisions of the tariff act as being sui generis and subject to a broader interpretation than that to which other paragraphs of the act are submitted. As I have said, I do not subscribe to such a concept of the coal-tar provision.
I do not deem it necessary at this point to discuss the question of whether the rule of ejusdem generis is properly involved in the matter before us, because I believe that the record and prior judicial authority otherwise establish that the substance here involved, homatropine hydrobromide, is not properly classifiable under paragraph 28 (a), supra.
In a case decided subsequent to the Bayer case, cited by the majority, this division of the court held that the term “medicináis,” as used in paragraph 28 (a) of the Tariff Act of' 1930, was limited to those substances in which the coal-tar element or elements supplied the therapeutic properties which characterized a substance as medicinal. See J. B. Roerig and Company v. United States, 26 Cust. Ct. 131, C. D. 1313.
As I read the record in the case at bar, I conclude that the element which supplies the therapeutic properties of homatropine hydro-bromide, not only in its chief use as a mydriatic and a cycloplegic, but also in its minor use in the cure of biliary dyskinesia or the alleviation of pain in peripheral vascular spasm, is atropine, which the evidence clearly establishes to be of non-coal-tar origin. The function of the mandelic acid, which is the coal-tar derivative contained in homatropine hydrobromide, is shown to be in the reduction of the toxicity of the atropine and to make its effect less lasting, or as a “control,” as expressed by the majority in its opinion herein. The mandelic acid, therefore, does not contribute any therapeutic properties which it possesses, whatever they may be, to the medicinal use of homatropine hydrobromide. Under the principles expressed in the Boerig case, therefore, homatropine hydrobromide is not a medicinal within the meaning of that term, as used in paragraph 28 (a).
There is, to my mind, another reason why the merchandise does not take classification under paragraph 28 (a) as a “medicinal.” As has been said, the term “medicinal” is an eo nomine designation by *191use, or suggesting use. It appears that homatropine hydrobromide was known to commerce at and prior to the effective date of the Tariff Act of 1930, i. e., June 17, 1930, in paragraph 28 (a) of which the term “medicináis” appears. In such cases, it is the use of the merchandise at the time of the passage of the act in which the classification term appears which controls. The record clearly shows that the minor uses, and the only truly medicinal uses of homatropine hydrobromide, in the cure of biliary dyskinesia and in the alleviation of pain in peripheral vascular spasm began experimentally in 1936 and regularly in 1940. It follows, therefore, that the sole use of homatropine hydrobromide at or about June 17, 1930, when the Tariff Act of 1930 was enacted, was as a mydriatic and cycloplegic, which use is nonmedicinal. See Wilbur-Ellis Co. et al. v. United States, 18 C. C. P. A. (Customs) 472, T. D. 44762, and Goldsmith’s Sons v. United States, 13 Ct. Cust. Appls. 69, T. D. 40932, cited therein, for a discussion as to the controlling dates in cases of eo nomine designations, as distinguished from designations where the word “use” is employed.
As the chief use of the merchandise at bar is for other than prevention, cure, or alleviation of disease, it is not classifiable under the provision in paragraph 5 for medicinal preparations. It is not classifiable under paragraph 34 as an advanced drug, for the reason that the record shows it to be compounded. It is shown to be both a chemical compound and a bromine compound, the former dutiable under paragraph 5, and the latter under paragraph 45. Since “bromine compounds” is a more specific designation than “chemical * * * compounds,” clearly the merchandise should take classification under paragraph 45, as claimed by the plaintiff.