The term "manufactured" in paragraphs 1538 and 1738 should not be read as though it stands alone, as in the tariff provisions involved in the Hartranft case. Rather, this term should take color and meaning from the enumerated operations, which are to be regarded as manufacturing operations within the purview of these paragraphs. To hold differently would be to ignore the plain meaning of the changed statutory language and would in effect eliminate and render meaningless the word "otherwise" in each of these paragraphs. This is a result which we believe Congress clearly could not have intended. Consequently, we are of the opinion that the term "or otherwise manufactured" in the exclusion clause of paragraph 1738 includes all operations which are ejusdem generis with "sawing, cutting, flaking, and polishing" unless there is evidence of Congressional intent to the contrary.

* * *

It would seem that removal of edges of shells by grinding, as in this case, would, for reasons indicated below, clearly be ejusdem generis with "sawing, cutting, flaking, and polishing" and, hence, that the imported shells are "otherwise manufactured" within the purview of the exclusion clause of paragraph 1738. However, it will be noted that the free list exclusion clause of paragraphs 701 and 613 of the 1890 and 1894 acts, respectively, referred to "Shells not cut, ground, or otherwise manufactured." [Italics added.] In the act of 1897, the word "ground" was omitted from the exclusion clause of the free list provision, and this change has been carried forward in the subsequent acts of 1909, 1913, 1922, and 1930. Thus it is necessary to consider at this point whether, by such omission, Congress has indicated an intent not to include "shells ground" within the exclusion clause of the free list provision.

Ordinarily, where the essential word that supports a construction contended for appeared in an earlier act and has been omitted in a subsequent one by Congress, the omitted word may not be restored in the terms of the law by judicial construction. United States v. Marsching, 1 Ct. Cust. Appls. 216, T. D. 31257. Such a change of legislative language is presumed to evidence an intent on the part of Congress to effect a change in meaning. United States v. Post Fish

Co., 13 Ct. Cust. Appls. 155, T. D. 41022. But this rule of construction is not absolute and does not always compel the conclusion that a change in meaning is meant. Stroheim & Romann v. United States, 13 Ct. Cust. Appls. 489, T. D. 41370, wherein we discussed the Post Fish and Marsching cases, supra. Particularly, there are exceptions to the rule where such changes of phraseology have been accompanied by other changes in language which plainly indicate a Congressional intent to make no change in meaning, or where this is indicated by application of equally compelling principles of statutory construction,

such as the doctrine of legislative ratification of judicial construction. Post Fish case, supra, and cases cited therein.

For reasons hereinafter set out, it is our view that this case comes within both the latter exceptions rather than the general rule.

Paragraph 635 of the 1897 act, supra, is not a direct carry-over from the preceding act of 1894. Rather, it is a consolidation of the two following provisions in the free list of the latter act:

Par. 580. Pearl, mother of, not sawed, cut, or otherwise manufactured. Par. 613. Shells of all kinds, not cut, ground, or otherwise manufactured. Thus, although the word "ground" was omitted from paragraph 635 in the 1897 act, a new word "polished" was added.

In "Funk and Wagnall's New Standard Dictionary," 1938 Ed., we find the following [Italics added.]:

grind, v.

I. t. *

3. To give a shape or edge to by abrasion; cause to become sharp or polished by abrasion; as to grind a pair of shears.

II. i.

*

* 3. To be smoothed, polished, or made sharp by rubbing; as, glass or steel grinds easily.

grinding wheel, n.

1. Any wheel for grinding or polishing.

Moreover, the court takes judicial notice of the fact that polishing is commonly carried out on an emery or buff wheel in substantially the same manner as is grinding. In "Lockwood's Dictionary of Terms. Used in the Practice of Mechanical Engineering," 4th Ed., 1913, we find the following [Italics added.]:

Grinding-The abrasion of *

* * *

surfaces on a grindstone or emery wheel

Polishing Lathe, or Polishing Head-A mandrel and pulley driven at high speed and carrying small emery or buff wheels for polishing light work.

The meaning of a tariff term is presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary. E. E. Kelly & Co. v. United States, 17 C. C. P. A. (Customs) 30, T. D. 43322. In view of the foregoing, it is our opinion that the words "ground" and "polished," while not necessarily synonymous, are so very closely related in meaning that it would clearly result in very anomalous consequences to hold that shells polished, as by an emery wheel, are excluded from the tree list, whereas shells ground in a like manner are not so excluded. A construction resulting in such an anomaly should be avoided, if possible, since it is generally looked upon as contrary to the legislative intent. Elmer T. Middleton v. United States, 28 C. C. P. A. (Customs) 214, C. A. D. 148; United States v. J. M. Lehman Co., Inc., 22 C. C. P. A. (Customs) 106, T. D. 47081. For this reason, we hold that shells ground are ejusdem generis with shells "sawed, cut, flaked, [or] polished."

Hence, they are "otherwise manufactured" within the purview of the exclusion clause of paragraph 1738 of the 1930 act, notwithstanding that the term "ground" in the acts of 1890 and 1894 was omitted in the later tariff acts. Accordingly, it follows that the imported shells are properly classified as "shells otherwise manu

*

factured," under paragraph 1538 of the 1930 act.

*

Moreover, we need not rely solely on resort to dictionary definitions for a solution of the problem. Almost fifty years ago, in 1903, the Board of General Appraisers, in the case of In re Winters et al., T. D. 24720, considered the classification of shells which had been advanced in value "by polishing or grinding, or by both of those processes." The issue before the board was whether such shells were classifiable under paragraph 450 of the 1897 act, supra, as "shells * * * otherwise manufactured," or to be admitted free of duty under paragraph 635 of that act, supra. The board held that "these articles are 'shells, * * * otherwise manufactured,' within the meaning of the provision in said paragraph 450 for 'shells engraved, cut, ornamented, or otherwise manufactured,' polishing and GRINDING being ejusdem generis with the processes of cutting, etc., enumerated in that provison." [Capitals added.] It is of course implicit in that decision that "grinding" was considered also to be ejusdem generis with the processes of "sawing, cutting, and polishing" enumerated in free list paragraph 701 of the 1897 act.

There was no appeal from this decision of the board, and this holding was later followed, or cited with approval, by it in T. D. 24809 (1903) and T. D. 28988, Abstract 18877 (1908).

Since the board's decisions in the Winters case, supra, and the latter two cases, Congress has used practically identical statutory language in the provisions pertaining to shells in each of the four successive tariff acts of 1909, 1913, 1922, and 1930. There is a presumption of legislative ratification of judicial construction by a single legislative reenactment of an act in the same language after an unappealed decision of the Customs Court, or its predecessor the board. United States v. Illfelder & Co., 9 Ct. Cust. Appls. 40, T. D. 37901. But, although highly persuasive, such presumption is not necessarily a strong one in the absence of evidence showing actual notice by Congress, since that tribunal is not the court of last resort. See 59 C. J. 1061, 1064 [§ 625 (b)]. However, where subsequent to such a decision Congress has reenacted the construed provision in four successive acts using the same language, as is the case here, the doctrine of legislative ratification of judicial construction is controlling in the absence of very compelling reasons to the contrary (of which we find none in this case). The reason for this is that Congress is presumably cognizant of such judicial interpretation and its consequences, and to hold otherwise in the face of such a series of reenactments would be

attributing to that body an unusual indifference or lack of knowledge. That is an attitude to be avoided. United States v. Bassichis Co., et al., 16 Ct. Cust. Appls. 410, T. D. 43133, and numerous cases cited therein; Kelly case, supra.

In view of the foregoing, we think the doctrine of legislative ratification is decisive in this case. By virtue of legislative ratification of the board's holding in the Winters case, supra, we are of the opinion, as we have previously concluded, that shells "ground" are excluded from classification under the free list paragraph 1738 of the 1930 act. Rather, they are properly classified as "shells otherwise manufactured" at 35 per centum ad valorem, under paragraph 1538 of that act.

*

For reasons herein before set out, the decison of the Customs Court, sustaining the action of the collector, is hereby affirmed.

JACKSON, J., retired, recalled to participate herein.

WILLIAM P. COLE, JR., J., having participated below, disqualified himself to sit in this case, and JAMES W. MORRIS, United States District Judge for the District of Columbia, was designated and did serve herein, pursuant to the provisions of Title 28, United States Code, section 293.

ROBINSON-WAGNER Co., Inc. v. UNITED STATES (No. 4710) 1

1. WOOL GREASE SUITABLE FOR MEDICINAL USE

1

Two shipments of wool grease were properly classified as wool grease suitable for medicinal use at the rate of two cents per pound pursuant to paragraph 52, Tariff Act of 1930, as modified, rather than at the rate of one cent per pound under the same paragraph as wool grease containing two percent or less of free fatty acids and not suitable for medicinal use, and that the grease is adeps lanae, hydrous or anhydrous, as claimed by appellant.

2. SAMPLING

Under the state of facts disclosed by the record, there can be no doubt that the samples drawn from the six individual drums by the customs officials contained wool grease properly classifiable as held by the collector. On the other hand, the composite method of sampling which was made by appellant would appear to represent the average composition of the entire shipment. It is obvious that the results of the two methods of sampling are different and capable of producing different results.

3. COMMINGLED GOODS

In the shipments involved there were two distinct commodities for tariff purposes. For the reason that the merchandise was imported in drums some were of one tariff character and some of a different tariff character, the merchandise as shipped was commingled. Held, therefore, that the customs officers could not readily ascertain the number of drums containing each class of wool grease.

1 C. A. D. 501.

4. SAMPLES

It appears in the record that wool grease similar in all respects to that which was taken from the drums by the Government is bought and sold in great quantities as adeps lanae and suitable for medicinal use.

5. FINDINGS OF TRIAL COURT-EVIDENCE

The finding of the trial court is not contrary to the weight of the evidence. The trial court had the witnesses before it, had listened to their testimony, and it is axiomatic to say that the trial court is in a better position to form an opinion of the reliability of the testimony than can an appellate tribunal and, therefore, the findings of a trial court will not be set aside without good and sufficient reason.

United States Court of Customs and Patent Appeals, November 4, 1952 Appeal from United States Customs Court, C. D. 1363

[Affirmed.]

Eugene R. Pickrell (Michael Stramiello, Jr., Esq., of counsel) for appellant. Charles J. Wagner, Acting Assistant Attorney General (Richard F. Weeks, special attorney, of counsel), for the United States.

[Oral argument October 8, 1952, by Mr. Pickrell and Mr. Weeks]

Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, and JACKSON (retired), Associate Judges, and MORRIS, United States District Judge for the District of Columbia.

JACKSON, Judge, delivered the opinion of the court:

This is an appeal from a judgment of the United States Customs Court, First Division, pursuant to its decision, C. D. 1363, overruling the protest of appellant claiming that two shipments of Wool Grease were improperly classified by the Collector of Customs at the port of New York as wool grease suitable for medicinal use at the rate of two cents per pound pursuant to paragraph 52 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T. D. 51802.

The pertinent portions of the involved paragraph read as follows: Wool grease:

Containing more than 2 per centum of free fatty acids_---Containing 2 per centum or less of free fatty acids and not suitable for medicinal use.

1⁄2¢ per lb.

1¢ per lb.

Suitable for medicinal use, including adeps lanae, hydrous or anhydrous....

2¢ per lb.

In its protest the appellant claims the imported merchandise to be properly classifiable at the rate of one cent per pound under the said paragraph as wool grease containing two per cent or less of free fatty acids and not suitable for medicinal use, and that the grease is not adeps lanae, hydrous or anhydrous.