CONCURRING IN PART AND DISSENTING IN PART OPINION
Ford, Judge,concurring in part and dissenting in part: I concur in the majority holding that the merchandise in the above-stated case is not a manufacture of wood and quote the following from Tide Water Oil Co. v. United States, 171 U. S. 210, 43 L. ed. 139, in support of that conclusion:
The primary meaning of the word “manufacture” is something made by hand, as distinguished from a natural growth; but as machinery has largely supplanted this primitive method, the word is now ordinarily used to denote an article upon the material of which labor has been expended to make the finished product. Ordinarily, the article so manufactured takes a different form, or at least sub-serves a different purpose from the original materials; and usually it is given a different name. Raw materials may be and often are subjected to successive processes of manufacture, each one of which is complete in itself, but several of which may be required to make the final product. Thus, logs are first manufactured into boards, planks, joists, scantlings, etc., and then by entirely different processes are fashioned into boxes, furniture, doors, window sashes, trimmings, and the thousand and one articles manufactured wholly or in part of wood. The steel spring of a watch is made ultimately from iron ore, but by a large number of processes or transformations, each successive step in which is a distinct process of manufacture, and for which the article so manufactured receives a different name.
The material of which each manufacture is formed, and to which reference is made in § 3019, is not necessarily the original raw material — in this case the tree or log — but the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank. This case, then, resolves itself into the question whether the materials out of which these boxes were constructed were the boards which were manufactured in Canada or the hooks which were imported into the United States.
When the observations in the above quotation are applied to the facts in this case, their controlling effect is readily apparent.
On .the question of whether the subject merchandise is “plate finished,” I am not in agreement with the majority opinion that the plaintiff has failed to establish that it is not “plate finished,” within the meaning of the two paragraphs here involved.
In the original decision of the issue here presented, reported in 34 Cust. Ct. 208, C. D. 1706, in which I joined, after detailing the various steps employed in the manufacture of the merchandise there in issue, the decision concludes with the following statement: “The finished hardboard is made in that one single operation.”
*205In Report No. 37 of the Senate Finance Committee on H. R. 2667, which eventually became the Tariff Act of 1930, the following appears:
In paragraph. 1402, which provides for nonprocessed paper board, wall board, and pulpboard, including cardboard and leatherboard or compress leather, the committee rephrased the processing terms employed with a view of eliminating ambiguities. No change in rates is made in this paragraph.
The terms “plate finished, supercalendered or friction calendered” are substituted for “glazed.” The term “glazed” in this paragraph is used in a descriptive rather than in a commercial sense. Administrative officials have been unable to determine the exact degree of gloss which is intended by the term “glazed.” The terms “plate finished, supercalendéred or friction calendered” are here used to indicate a gloss produced by a secondary process. These processes, generally speaking are obtained by passing paper or board over one or a series of rolls sometimes of different material, with or without heat, under pressure.
There is no suggestion contained in our original decision, or in the decision of the majority herein, that the subject merchandise was, at any time, passed over one or a series of rolls, sometimes of different material, with or without heat, under pressure, as outlined in the above Senate Finance Committee report. The said report makes it clear that the Congress intended the term “plate finished” to indicate a gloss produced by a secondary process. It would appear, therefore, that unless the instant merchandise had a secondary process applied to it, it should not be held to be “plate finished.” On the other hand, if the merchandise had a secondary process applied to it, how can it be held that “The finished hardboard is made in that one single operation?”
The fact, if it be a fact, as held by the majority, that hardboard can be produced without the use of a caul plate does not ipso facto make the involved hardboard “plate finished.” The Congress has made it plain what it intended to encompass by the words “plate finished.” That intent we must respect, whether or not hardboard can be made without a caul plate. It is my view that the words “plate finished” connote a process applied to hardboard after it has reached a stage where it is known and recognized as hardboard, rather than a process which is applied to pulp containing from 65 to 70 per centum water. This record does not make it clear how any process applied to pulp containing from 65 to 70 per centum water can give it a gloss. In any event, “plate finished” pulp would not be “plate finished” hardboard.
Considering the plain declaration by the Congress that “The terms ‘plate finished, supercalendered or friction calendered’ are here used to indicate a gloss produced by a secondary process,” I am unable to agree with the holding of tñe majority “* * * that no specific process designed to create the gloss is dictated.”
I am in agreement with the majority that it is important to know *206what hardboard is, and, in my opinion, it is equally as important to know what the secondary process is and exactly when and where it starts or comes into existence, as referred to by the majority.
The following is quoted from the majority opinion:
* * * It is our view that it was the intention of Congress * * * in phrasing paragraphs 1402 and 1413 to impose a higher rate of duty upon pulpboard having a gloss produced by a secondary process, that is, secondary from the point of view of necessity rather than from the point of view of a subsequent process applied to a preexisting material, * * *.
The above quotation sets up two rules for determining whether or not a process applied to the subject merchandise was a secondary process. One of these rules is based on the point of view of necessity, and the other is based on the point of view of a subsequent process applied to a preexisting material. The majority discards the latter in favor of the former in deciding that the subject merchandise is “plate finished.” The rule for determining the classification of merchandise based on the point of view of a subsequent process applied to a preexisting material is of long standing, having been announced and applied as long ago as March 9, 1916, in the case of United States v. Macy, 7 Ct. Cust. Appls. 8, T. D. 36256, and has been followed in many decisions since that date. As to the rule announced by the majority of finding the proper classification of the instant merchandise based on the point of view of necessity, my research has not revealed any decision of any court announcing such a rule. The majority opinion cites no authority in support of such a rule.
A consideration-of said paragraphs 1402 and 1413 reveals that Congress therein specifically provided for paper board, wallboard, pulp-board, and other boards and varied the rates of duty according to whether or not such boards had been “plate finished.” Said paragraphs make no provision for pulp containing from 65 to 70 per centum water, “plate finished.” In my opinion, said paragraphs require the application of the rule of a subsequent process applied to a preexisting material in determining whether or not the boards therein provided for are “plate finished.”
When the rule for finding the proper classification of merchandise based upon a subsequent process applied to a preexisting material is applied to the merchandise in this case, I see no escape from the conclusion that the instant board has not been “plate finished.”
The views herein expressed are not in complete agreement with the views entertained by me when I concurred in the former decision on this same subject. However, upon a consideration of the record now before me, my present views are as herein expressed.
Since I have reached the conclusion that the instant merchandise is not “plate finished,” it becomes necessary to consider the question *207of whether the subject merchandise belongs to that class or kind of wallboard which was, at and prior to the passage of the Tariff Act of 1930, or at and prior to the effective date of the trade agreement under which it was classified, chiefly used as wallboard. On this point, the testimony is conflicting, the witnesses for the plaintiff testifying that it was chiefly used as wallboard within certain territorial limits, and the witnesses for the defendant testifying that it was not chiefly used as wallboard within certain territorial limits. It is not necessary, however, that I should give further consideration to the testimony than to observe that the testimony of the witnesses for the plaintiff covered only the following states, or portions thereof:
Arkansas, Ohio, West Virginia, Michigan, Illinois, New York, Pennsylvania, Kansas, Missouri, Oklahoma, Nebraska, Colorado, Indiana, Texas, New Mexico, Mississippi, Louisiana, and Tennessee.
I realize, of course, that it was not incumbent upon the plaintiff herein to show that in every part of the United States the chief use of the involved merchandise was as wallboard. The determination of chief use not only involves a territorial or.geographical consideration, but, as well, the quantity of the merchandise used. However, chief use must be established generally throughout the United States, and such use cannot be local or partial.
In the case of United States v. S. S. Perry, 25 C. C. P. A. (Customs) 282, T. D. 49395, it was held that the testimony of one witness that the merchandise there involved was chiefly used as chicken leg bands in the States of California, Oregon, and Washington was sufficient to establish chief use of such merchandise. The witness also testified that the States of California, Oregon, and Washington were the principal poultry center of the United States. In the present case, we have no testimony indicating that any particular section of the United States is the principal center in which hardboard and wallboard were .chiefly used.
For the foregoing reasons, I am of the opinion that while the plaintiff has established the fact that the subject merchandise is not “plate finished,” it has failed to establish that said merchandise belongs to that class or kind of hardboard which was chiefly used as wallboard on or about June 17, 1930, or at or about the effective'date of the trade agreement under which it was classified.
Since the plaintiff has failed to establish by proper evidence the chief use of the subject merchandise, I join my associates in overruling all claims in this'suit, while at the same time disagreeing with the majority holding that the subject merchandise is plate finished.