Smith, Judge,
delivered the opinion of the court:
Steel bars containing over six-tenths of 1 per centum tungsten were assessed with the appropriate rate of duty prescribed by paragraph 304 of the Tariff Act of 1922 and also with an additional duty of 72 cents per pound under paragraph 305 of said act, which reads, in part, as follows:
305. In addition to the rates of duty provided for in this schedule on steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of nickel, * * * tungsten, molybdenum, or any other metallic element used in alloying steel, there shall be levied, collected, and paid 8 per centum ad valorem: * * * Provided, * * * That an additional cumulative duty of 65 cents per pound on the molybdenum •content in excess of six-tenths of 1 per centum, and .72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, •and paid on any material provided for in paragraph 304 containing molybdenum and tungsten. (Italics not quoted.) (The proviso recited is the second proviso to the paragraph.)
The importer protested that the steel bars contained tungsten only, not molybdenum and tungsten, and that therefore the merchandise was not subject to the additional rate of duty. The United States •Customs Court overruled the protest and the importer appealed.
Does the second proviso of paragraph 305 apply to any of the materials provided for in paragraph 304 which do not contain both •molybdenum and tungsten, is the sole question presented by this appeal.
The Government contends that the proviso above quoted which •makes the additional duty applicable to “any material provided for in paragraph 304 containing molybdenum and tungsten” should be construed as if it read: “any material provided for in paragraph 304 containing molybdenum or tungsten.” In support of that contention, the Government cited the opinion of General Appraiser Fischer in the matter of the protest of Robert K. Greaves & Co., T. D. 40005. That opinion states that molybdenum and tungsten were separately discussed and investigated by the Ways and Means Committee of the House and the Finance Committee of the Senate, whereas many of the other well-known steel alloys were treated more or less collectively. The general appraiser. also points out that the hearings before both committees disclose that steels of which molybdenum is an alloy have uses and purposes separate and distinct from steels which contain tungsten; that molybdenum steel is used for structural parts of machines such as automobiles, airplanes, trucks, tractors, and other things requiring a maximum of strength and [28]*28toughness, whereas tungsten steel is employed in the manufacture of tools and high-speed tools, the tungsten content of which ranges from 2 to 18 per centum.
From those facts and the fact that tungsten and molybdenum are separately provided for in paragraph 302, the opinion deduces the conclusion that the words “containing molybdenum and tungsten,” if not mere surplusage, must be regarded as having been added out of an abundance of precaution, inasmuch as to hold otherwise would do violence to the very purpose and intent of the whole proviso and defeat the consistently expressed will of the lawmakers.
We find ourselves unable to sustain the contention of the Government or to agree with the conclusion reached in the Greaves case. The contention of the Government and the reasoning of the learned judge who wrote the opinion in the Greaves case can be sustained, if at all, only on the assumption that there are no steels produced containing both tungsten and molybdenum and that when molybdenum is used in the manufacture of steel, tungsten is not used. That assumption, however, is not supported by the record. Engel-stadt, a witness for the importer, testified that he was engaged in the steel and iron business and that he handled steel containing tungsten, steel containing molybdenum, and steel containing both tungsten and molybdenum. Indeed, the importer offered to prove that molybdenum was introduced into steel for the purpose of increasing its toughness, that tungsten was added for the purpose of giving to steel higher head-resisting qualities, that tungsten was not a substitute for molybdenum, and that molybdenum was not a substitute for tungsten. The importer, although he was not allowed to make good his offer, nevertheless proved by the unimpeached and uncontradicted testimony which was admitted in evidence that there is a steel containing tungsten only, a steel containing molybdenum only, and a steel containing both tungsten and molybdenum. That testimony establishes that there is a steel to which the proviso, just as it was enacted, is applicable.
The first part of paragraph 305 imposes an additional duty of 8 per centum ad valorem on steel which contains six-tenths of 1 per centum of tungsten and 8 per centum ad valorem on steel which contains more than six-tenths of 1 per centum of molybdenum. The second proviso to that paragraph subjects the steel materials enumerated in paragraph 304 which contain molybdenum and tungsten to a cumulative duty of 65 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum. That cumulative duty was imposed on a steel which possessed not only the desirable characteristics produced by the addition of molybdenum but also the heat-resisting and self-hardening [29]*29in air qualities conferred by the addition of tungsten. See “Tungsten,” New Standard Dictionary. As steel of that kind was certainly a more costly and probably a much higher grade of steel than a steel containing only one of the alloying metallic elements, it was assessed with a higher rate of duty than the less processed and simpler product.
There is absolutely nothing in the proviso or in the tariff or other laws from which it could be fairly or properly deduced that the words “containing molybdenum and tungsten” were thrown into the statute as a precaution or as mere surplusage. Neither is there any sound reason for believing that Congress intended to use the word “or” instead of the word “and, ” in said phrase. In fact, if Congress had actually uked the word “or” it would, in terms at least, have excluded from the operation of the second proviso a distinct, particular class of commercial steel which by the use of the word “and” was expressly subjected to the high, additional cumulative duty therein prescribed.
The language in the second proviso of paragraph 305 is not ambiguous and will result in no absurdity or conflict with any other part of the statute, if given the definite meaning which its words clearly import. The courts are, therefore, bound to determine the intention of Congress by the language which was actually used and have no right to give any meaning to such language other than that conveyed by the words, terms, or expressions in which the legislative will was expressed. United States v. Marx, 1 Ct. Cust. Appls. 152, 155; Paulina v. United States, 7 Cranch 52, 60; Lewis v. United States, 92 U. S. 618, 621; Thornley v. United States, 113 U.
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Smith, Judge,
delivered the opinion of the court:
Steel bars containing over six-tenths of 1 per centum tungsten were assessed with the appropriate rate of duty prescribed by paragraph 304 of the Tariff Act of 1922 and also with an additional duty of 72 cents per pound under paragraph 305 of said act, which reads, in part, as follows:
305. In addition to the rates of duty provided for in this schedule on steel in all forms and shapes, by whatever process made, and by whatever name designated, whether cast, hot or cold rolled, forged, stamped, or drawn, containing more than six-tenths of 1 per centum of nickel, * * * tungsten, molybdenum, or any other metallic element used in alloying steel, there shall be levied, collected, and paid 8 per centum ad valorem: * * * Provided, * * * That an additional cumulative duty of 65 cents per pound on the molybdenum •content in excess of six-tenths of 1 per centum, and .72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, •and paid on any material provided for in paragraph 304 containing molybdenum and tungsten. (Italics not quoted.) (The proviso recited is the second proviso to the paragraph.)
The importer protested that the steel bars contained tungsten only, not molybdenum and tungsten, and that therefore the merchandise was not subject to the additional rate of duty. The United States •Customs Court overruled the protest and the importer appealed.
Does the second proviso of paragraph 305 apply to any of the materials provided for in paragraph 304 which do not contain both •molybdenum and tungsten, is the sole question presented by this appeal.
The Government contends that the proviso above quoted which •makes the additional duty applicable to “any material provided for in paragraph 304 containing molybdenum and tungsten” should be construed as if it read: “any material provided for in paragraph 304 containing molybdenum or tungsten.” In support of that contention, the Government cited the opinion of General Appraiser Fischer in the matter of the protest of Robert K. Greaves & Co., T. D. 40005. That opinion states that molybdenum and tungsten were separately discussed and investigated by the Ways and Means Committee of the House and the Finance Committee of the Senate, whereas many of the other well-known steel alloys were treated more or less collectively. The general appraiser. also points out that the hearings before both committees disclose that steels of which molybdenum is an alloy have uses and purposes separate and distinct from steels which contain tungsten; that molybdenum steel is used for structural parts of machines such as automobiles, airplanes, trucks, tractors, and other things requiring a maximum of strength and [28]*28toughness, whereas tungsten steel is employed in the manufacture of tools and high-speed tools, the tungsten content of which ranges from 2 to 18 per centum.
From those facts and the fact that tungsten and molybdenum are separately provided for in paragraph 302, the opinion deduces the conclusion that the words “containing molybdenum and tungsten,” if not mere surplusage, must be regarded as having been added out of an abundance of precaution, inasmuch as to hold otherwise would do violence to the very purpose and intent of the whole proviso and defeat the consistently expressed will of the lawmakers.
We find ourselves unable to sustain the contention of the Government or to agree with the conclusion reached in the Greaves case. The contention of the Government and the reasoning of the learned judge who wrote the opinion in the Greaves case can be sustained, if at all, only on the assumption that there are no steels produced containing both tungsten and molybdenum and that when molybdenum is used in the manufacture of steel, tungsten is not used. That assumption, however, is not supported by the record. Engel-stadt, a witness for the importer, testified that he was engaged in the steel and iron business and that he handled steel containing tungsten, steel containing molybdenum, and steel containing both tungsten and molybdenum. Indeed, the importer offered to prove that molybdenum was introduced into steel for the purpose of increasing its toughness, that tungsten was added for the purpose of giving to steel higher head-resisting qualities, that tungsten was not a substitute for molybdenum, and that molybdenum was not a substitute for tungsten. The importer, although he was not allowed to make good his offer, nevertheless proved by the unimpeached and uncontradicted testimony which was admitted in evidence that there is a steel containing tungsten only, a steel containing molybdenum only, and a steel containing both tungsten and molybdenum. That testimony establishes that there is a steel to which the proviso, just as it was enacted, is applicable.
The first part of paragraph 305 imposes an additional duty of 8 per centum ad valorem on steel which contains six-tenths of 1 per centum of tungsten and 8 per centum ad valorem on steel which contains more than six-tenths of 1 per centum of molybdenum. The second proviso to that paragraph subjects the steel materials enumerated in paragraph 304 which contain molybdenum and tungsten to a cumulative duty of 65 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum. That cumulative duty was imposed on a steel which possessed not only the desirable characteristics produced by the addition of molybdenum but also the heat-resisting and self-hardening [29]*29in air qualities conferred by the addition of tungsten. See “Tungsten,” New Standard Dictionary. As steel of that kind was certainly a more costly and probably a much higher grade of steel than a steel containing only one of the alloying metallic elements, it was assessed with a higher rate of duty than the less processed and simpler product.
There is absolutely nothing in the proviso or in the tariff or other laws from which it could be fairly or properly deduced that the words “containing molybdenum and tungsten” were thrown into the statute as a precaution or as mere surplusage. Neither is there any sound reason for believing that Congress intended to use the word “or” instead of the word “and, ” in said phrase. In fact, if Congress had actually uked the word “or” it would, in terms at least, have excluded from the operation of the second proviso a distinct, particular class of commercial steel which by the use of the word “and” was expressly subjected to the high, additional cumulative duty therein prescribed.
The language in the second proviso of paragraph 305 is not ambiguous and will result in no absurdity or conflict with any other part of the statute, if given the definite meaning which its words clearly import. The courts are, therefore, bound to determine the intention of Congress by the language which was actually used and have no right to give any meaning to such language other than that conveyed by the words, terms, or expressions in which the legislative will was expressed. United States v. Marx, 1 Ct. Cust. Appls. 152, 155; Paulina v. United States, 7 Cranch 52, 60; Lewis v. United States, 92 U. S. 618, 621; Thornley v. United States, 113 U. S. 310, 313; Lake County v. Rollins, 130 U. S. 662, 670-671; United States v. Goldenberg, 168 U. S. 95, 102-103.
Where the language is plain and unmistakable, there is nothing to construe and to determine the purpose of the legislation in any other way than by giving to a plain statute its plain meaning would be nothing less than judicial legislation. Maxwell et al. v. Moore et al., 22 Howard 185, 191.
The provision for additional cumulative duty of $1.25 per pound as reported by the Ways and Means Committee of the House reads as follows:
Provided further, That an additional cumulative duty of $1.25 per pound on the molybdenum content in excess of 1 per centum, and 72 cents per pound on the tungsten content in excess of 1 per centum shall be levied and paid on any of the above-named articles. (Beginning with “any,” italics not quoted.)
In Committee of the Whole, Mr. Tilson, a member of the Ways and Means Committee, moved to strike out the words “of the above-named articles” and to insert in lieu thereof the following: “articles containing molybdenum and tungsten.” The amendment was [30]*30adopted and the proviso as it finally passed the House reads al-folio ws :
Provided further, That an additional cumulative duty of $1.26 per pound on the molybdenum content in excess of 1J4 per centum, and 72 cents per pound on the tungsten content in excess of 1J4 per centum shall be levied, collected and paid, on any articles containing molybdenum, and tungsten. (Beginning with, “any,” italics not quoted.)
The proviso as passed by the Senate and adopted in conference is now the second proviso of paragraph 305 of the tariff act now in force- and reads as follows:
Provided further, That an additional cumulative duty of 66 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, and paid on any material provided for in paragraph S04 containing molybdenum and tungsten. (Beginning with “any,” italics not quoted.)
Even if it were conceded that the language used was ambiguous- or uncertain and, therefore, open to interpretation, there is nothing-in that history of the legislation which would justify the conclusion that Congress did not mean exactly what it said, that the cumulative-duty was to be imposed on material containing molybdenum and tungsten. Indeed, any conclusion to be drawn from the history of the legislation militates against the position taken by the Government inasmuch as the bill as first reported by the Ways and Means Committee of the House accomplished the result for which the Government now contends and was not adopted either by the House or by the Senate.
In United States v. Gavin & Co., 7 Ct. Cust. Appls. 292, cited by the Government, silk netting, ornamented with beads and spangles, was classified under paragraph 358 of the tariff act of 1913 as “trimmings * * * of whatever yarns, threads, or filaments composed.” The importer claimed that the goods were articles composed wholly or in chief value of beads or spangles, dutiable under paragraph 333 of said act. This court held that paragraph 333 was not limited to articles which were ornamented with either beads or spangles and was applicable to articles ornamented with both beads and spangles. The court said “that trade and commerce had, long and. uniformly regarded articles trimmed with beads and spangles as beaded articles and that the words ‘bead, beaded, or jet trimmings, or ornaments’ as used in that tariff act embraced trimmings ornamented with both beads and spangles.” (The italicized word “beaded” not quoted.) The court definitely found that “in trade- and commerce and in tariff legislation the words beads and spangles were treated as and used interchangeably and collectively.” The-decision in the Gavin case was based not only on legislation previously passed but on the judicial interpretation of the designation, “manufactures known commercially as bead, beaded, or jet trim[31]*31mings, or ornaments” which was held to include spangles. See T. D. 23232 and Morrison v. United States, 107 Fed. Rep. 113.
United States v. Bertrose & Co., 11 Ct. Oust. Appls. 275, upon which appellee relies, is not in point. In that case pen and ink drawings were assessed for duty under paragraph 376 as pen and ink drawings, not specially provided for. The importer claimed that the drawings were entitled to free entry under paragraph 652 as “original drawings and sketches in pen and ink or pencil and water colors.” The board sustained the protest and held that the provision in the free list for “original drawings and sketches in pen and ink or pencil and water colors” was more specific than the dutiable provision. This court, on appeal, affirmed the board and held that the conjunction “and” should be interpreted as if it had been written “or,” citing the case of American Colortype Co. v. United States, 9 Ct. Cust. Appls. 212, 213, in which it was held that the free-list paragraph applied to pictures drawn or sketched in pen and ink or pencil, even though they were colored with water colors. If paragraph 652 had read “original drawings and sketches in pen and ink, containing pencil and water colors,” a different issue would have been presented and one more nearly resembling the case under discussion. No such wording was used, however, and the court very properly decided that paragraph 652 was more specific than paragraph 376 and was intended to cover drawings and sketches in pencil or in water colors. Clearly there was no tariff reason for exempting from duty original works of art which were first sketched in pencil and then water colored and subjecting to duty like original water color sketches which were made without the aid of a pencil.
The judgment of the United States Customs Court is reversed.