states otherwise) that the use of the clams from which the importation was produced has been very much limited by the processes they have undergone. It is common knowledge that people eat fried clams and clams on the half-shell. The product at bar could not be so utilized. In the instant case it is suggested that the contents of the cans are all clams. In the currant case the cans contained, in the same sense, all currants. The clams at bar would be "all clams", in the same sense, if they had been completely ground.

The majority cites United States v. General Hide & Skin Corp., 11 Ct. Cust. Appls. 78, T. D. 38731, involving rabbit meat which had been cooked and canned, and it was there held that the importation was "game" rather than "meats * prepared or preserved". It

is sufficient to point out the inapplicability of that case by calling attention to the fact that it was not there held that the importation consisted of rabbits. That case turned on the special meaning to be given the term "game". No such question about the meaning of the word "clams" is here involved.

In the opinion of the majority in the instant case we find the following, which, in my judgment, should be limited so as not to convey the impression which it clearly does, in view of the particular merchandise at bar:

The clear weight of the authorities on the subject is that an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article *

It may be said that there are pastes made by adding water to powdered vegetable matter. Everything in such a paste, except the water, came from the vegetable, and all the vegetable went in it, and yet we would not hold it to be dutiable as such vegetable eo nomine provided for, if there were a provision for vegetables prepared or preserved. It is true that the eo nomine provision for an article will ordinarily include all forms of that article, if it still remains that particular article, but if its identity has been destroyed, and if by processing it has become a new article, it of course cannot be included in the eo nomine provision.

The legislative history in this case suggests that the majority has arrived at an erroneous conclusion. A portion of the legislative history is referred to in the majority opinion but, in my judgment, the most significant phase of the same has been omitted. Parties representing the clam industry, chiefly in the Northwest, appeared before the Committee on Ways and Means of the House of Representatives, which prepared the provisions under consideration, and asked for a tariff on canned clams and products thereof, and they particularly pointed out that they did not ask for any duty on other shellfish

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except "clams and their products". The notes made on the committee print of the bill show that the articles provided for in paragraph 721 (b) had been taken from the free list provision (shellfish, etc.). It is obvious that the industry involved wanted to take out of the free list shellfish provision clams and clam products. Congress did not grant it that request but provided for clams and clam juice, and left clam products on the free list.

It seems to me that the decision of the majority will make the application of provisions for prepared and preserved articles, such as vegetables, fish, provisions, etc., a very difficult one in the future. Ordinarily, in tariff schedules relating to food products, provision is made for an article eo nomine and the eo nomine provision may be followed by words describing its condition, and then a "prepared or preserved" provision is made to broadly include such article when, on account of processing, it is removed from the eo nomine status. For some reason Congress did not follow this precedent in relation to clams, and to a number of other articles found in the tariff act, and it is concerning the latter that I now wish to draw attention.

Paragraph 746, Tariff Act of 1930, provides for mangoes at 15 cents per pound. Let us suppose that mangoes have been peeled, cut up into particles, cooked and canned. Under the decision of the majority, they would be dutiable under the eo nomine provision for mangoes if anyone could tell that the product in the can was made from mangoes, notwithstanding the fact that Congress, in paragraph 752, made dutiable at 35 per centum ad valorem fruits, when prepared or preserved. The same situation would pervail as to avocado pears and possibly a great many other articles on the dutiable list.

Let us also examine the free list. We find there "bananas and plantains, green or ripe." It is well known that plantains, which resemble bananas, are sometimes cooked while in a somewhat green state. Under the decision of the majority, the fruit plantain, if sliced, canned and cooked, and imported into this country, would not bear a rate of duty of 35 per centum ad valorem as fruits, prepared or preserved (and thus encourage the canning industry of this country), but would be relegated to the free list. The free list also contains provision without limitation for brazilian or pichurim beans (par. 1635); tagua nuts (par. 1778); tamarinds (par. 1779); and locust or carib beans, and pods and seeds thereof (par. 1782). It is our fear that the holding of the majority may lead us far afield in the classification of articles which are provided for in language like that employed in the instances suggested.

The majority opinion points out the incongruity of Congress intending the merchandise at bar being free of duty if it intended to protect the clam industry. If Congress had intended to include clam products in the dutiable paragraph, it could easily have done so by

the use of appropriate language, and the fact that full protection may not be given to the clam industry as suggested, should not be a controlling consideration in this case. If the legislative history is suggestive of what Congress intended, it comes nearer suggesting the intent to leave clam products on the free list than it does to include them under the eo nomine provision for clams. The fact that the clam industry in this country would have no protection on its clam products is not a matter with which we can concern ourselves. This is a matter strictly within the prerogatives of the legislative branch of our Government, and it may have had good reasons, and reasons wholly consistent with the tariff act as a whole, for leaving clam products on the free list.

Let us suppose that the tariff provision before us was as follows: 721. (b) Clams, 10 per centum ad valorem; * * shellfish, prepared or preserved, not specially provided for, 35 per centum ad valorem.

Is it conceivable that under such a provision the very much processed clam product at bar would not be held dutiable as shellfish, prepared, especially in view of the legislative history above suggested?

I do not mean to suggest that it is my view that clams which have been cooked and washed and salted, without destroying the identity of the individual clams, would not be dutiable under said paragraph 721(b). On the contrary, it is my view that they would be so dutiable, but in the case at bar the processing of the clams completely destroyed their identity, and to bring the product before us under said paragraph we would be compelled to read into it the words "prepared or preserved" which Congress presumably intentionally omitted therefrom, but did provide for with respect to shellfish under paragraph 1761.

On account of the above considerations, I am of the opinion that the protest of the importer should have been sustained and the judgment of the trial court should be reversed.

LENROOT, J., concurs in the above dissent.

(T. D. 47465)

Oil residue

BORNE SCRYMSER Co. v. UNITED STATES (No. 3813)

1. MERCHANDISE DESCRIBED ON INVOICE AS "OIL RESIDUE, MINERAL".

A coarse, thick mineral oil (a distillate obtained from petroleum and refined petroleum, but not changed to "chemicals manufactured from petroleum" in the refining processes), having a well-known commercial use in the textile industry and in making emulsions for use in many other industries, is properly classifiable as free of duty under paragraph 1733, Tariff Act of 1930, rather than as dutiable under paragraph 56, as classified by the collector The

importation is no more a waste product than were the rabbit snips in the Hatters' Fur Exchange case, 1 Ct. Cust. Appls. 198, or the cotton linters in the Salomon case, 1 Ct. Cust. Appls. 246; but even if it be considered a waste product there "is nothing in the language of paragraph 1733 which excludes by-products therefrom".

2. CONSTRUCTION, PARAGRAPH 56.

Paragraph 56 was not intended to apply to mineral oil, a petroleum product such as that here involved. See Bisbee Linseed Co. v. United States, 19 C. C. P. A. (Customs) 101, T. D. 45242. Legislative history also considered.

United States Court of Customs and Patent Appeals, January 7, 1935 APPEAL from United States Customs Court, T. D. 47062

[Reversed and remanded.]

Sharretts & Hillis (Edward P. Sharretts of counsel) for appellant.

Joseph R. Jackson, Assistant Attorney General (Charles D. Lawrence, special assistant to the Attorney General, and Marcus Higginbotham, Jr., special attorney, of counsel), for the United States.

[Oral argument December 11, 1934, by Mr. Sharretts and Mr. Lawrence]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges

GRAHAM, Presiding Judge, delivered the opinion of the court: The appellant imported, at the port of New York, certain merchandise described on the invoice as "oil residue, mineral." The appraiser, in his answer to the protest, said that it "was, on a previous analysis of similar merchandise, found to consist chiefly of the alkali salts of sulphonated petroleum acids. It is similar to a soluble grease but contains no fatty oil." The merchandise was classified by the collector for duty under paragraph 56 of the Tariff Act of 1930. The appellant protested, claiming the merchandise to be free of duty under paragraph 1733, or, alternatively, as a not enumerated manufactured or unmanufactured article, under paragraph 1558, or, alternatively, as "waste, not specially provided for," under paragraph 1555 of said act.

The trial court, Brown, Judge, dissenting, overruled the protest without affirming the action of the collector, being of opinion that the protestant had not sustained the claims made by him in this protest. The importer has appealed.

The imported product, at a temperature of 72 degrees Fahrenheit, is a heavy, oily material, brown in color, and flows easily but slowly. The chemist's report, which appears in the record, states, so far as it is deemed material here:

The sample is a manufactured product obtained from petroleum by treatment with sulphuric acid and caustic soda and contains the sodium sulphonates of the unsaturated constituents of petroleum.

The importer called two witnesses on the trial of the cause, and the Government called one. The testimony of these witnesses was directed to the process by which the imported merchandise was manufactured, and as to its uses and constituent elements. It fairly appears from the testimony of these witnesses, that in the distillation of crude petroleum by present methods, the distillation processes produce certain so-called fractions, as the distillation proceeds, as follows: Gasoline fraction, kerosene fraction, gas oil fraction, and lubricating fraction. Other fractions are produced, but a further detailing of the same is not deemed important here. The imported product results from a further treatment of the lubricating fraction. It appears, from the record, that it is the practice to refine certain of these fractions, particularly the lubricating fraction, by the application of the usual refining agents, which are, successively, sulphuric acid, alkali, and water. When the lubricating fraction of the distillate is thus refined, as a result thereof two products are procured, a heavy lubricating oil and a thick, dark, tarry sludge. This heavy lubricating oil is again subjected to a sulphonating process as before, and as a result thereof two products are produced: First, a clear, white, odorless mineral oil, such as the product known as "Nujol"; second, the imported product. It is plainly shown by the testimony that the imported merchandise is not a useless product, but has a well-known commercial use in the textile industry and in making emulsions for use in many other industries. It is regularly procured and sold by the importer for those purposes.

The testimony further shows that the imported product is a mineral oil derived from crude petroleum, and that it contains the sodium sulphonates of the unsaturated constituents of petroleum. It is also shown by the testimony of the witness Kalichevsky, in an incorporated record in the matter of protests Nos. 365142-G et al., that the treatment which the imported material has received has not made any chemical change therein.

Said paragraphs 56 and 1733 are as follows:

PAR. 56. Hydrogenated or hardened oils and fats, 4 cents per pound; other oils and fats, the composition and properties of which have been changed by vulcanizing, oxidizing, chlorinating, nitrating, or any other chemical process, and not specially provided for, 20 per centum ad valorem.

PAR. 1733. Oils, mineral: Petroleum, crude, fuel, or refined, and all distillates obtained from petroleum, including kerosene, benzine, naphtha, gasoline, paraffin, and paraffin oil, not specially provided for.

It is not contended by the Government here, on oral argument, that the imported merchandise was properly classified under said paragraph 56, but rather that it should have been classified under the not enumerated manufactured article clause of said paragraph 1558. It appears, also, from the proceedings in the trial court that said paragraph 56 was not relied upon by the Government there, and that