dissenting:
I am unable to agree with the court’s disposition of this case.
*136Tlie applicable, parts of section 617 of the Revenue Act of 1932 (47 Stat. 169,266,267) are as follows:
Tax ON Gasoline :
(a) There is hereby imposed on gasoline sold by the importer thereof or by a producer of gasoline, a tax of 1 cent a gallon, * * *.
(c) As used in this section—
(1) the term “producer” includes a refiner, com-pounder, or blender, and a dealer selling gasoline exclusively to producers of gasoline, as well as a producer.
(2) the term “gasoline” means gasoline, benzol, and any other liquid the chief use of which is as a fuel for the propulsion of motor vehicles, motor boats, or aero-planes.
It seems clear from the language used that Congress meant to impose a tax on the sale by the producer or importer of all gasoline plus all benzol plus any other . liquid the chief use of which is as a motor fuel.
The chief use test applies only to other liquids. Its effect was to include other natural or synthetic products generally used as a motor fuel and to exclude other liquids not commonly used for motor propulsion.
Any other construction runs into difficulties. For example, the chief use of benzol is as an industrial solvent rather than as a motor fuel. It is used much less than is natural or casinghead gasoline in blending as a motor fuel. If the chief use test applies to gasoline it must apply to benzol. It seems improbable that Congress would name a specific commodity like benzol to- be taxed and in the same sentence eliminate it by the chief use test.
If the construction claimed by plaintiff is correct the definition need not have specified any article, but might simply have said “Gasoline means any fluid the chief use of which is as a motor fuel.”
The changes in the 1934 act are cited. Changes or comments by a later Congress would be persuasive if the language used by a previous Congress were not clear. The language of the early act seems clear. Congress, in order to raise revenue, found it necessary to search for things to *137tax. It named two articles, and then added, a clause to cover other articles. This seems the natural conclusion.
But even if the later changes are considered, Congress simply broadened the definition and made it more inclusive. In addition to specifically naming gasoline and benzol, it also specifically named benzine and naphtha. Then in the second subdivision of the same sentence it included other articles offered for sale or sold as a fuel for the propulsion of motor vehicles. The House report in explaining the elimination of the special use test used the following language:
Lack of proof of quantities used for different purposes has made the “chief use” test impossible of satisfactory administration.
In other words, the changes seem to be made primarily to» increase the number of articles taxed and enlarge the field of operation. The term “chief use” was deleted not for the purpose of explaining or clarifying language, but for the purpose of eliminating administrative difficulties.
However, if the chief use test as used in the act of 1932 were construed to apply to the term gasoline, it is doubtful if plaintiff should be permitted to recover the tax. The evidence shows that by far the greater portion, probably more than 90%, of natural or casinghead gasoline is used as a motor fuel by blending with heavier gasoline. It was so used in 1932, and prior thereto. It is called gasoline. It is gasoline,» and its chief use is the blending with heavier gasoline for the purpose of making fuel for the propelling of motor vehicles.
Even if the “chief use” should be held to apply the decision should turn not upon the purpose for which the special gasoline in this particular case was sold, but upon the chief use made of the article generally.