In view of the fact that the record discloses no claim of injury, much less any proof thereof, we are of the opinion that we are precluded in this action from passing upon the constitutionality of the laws the validity of which is questioned herein. The motion for dismissal of the case is therefore granted. (T. D. 48685) VITA FOOD PRODUCTS, INC. v. UNITED STATES (No. 3988) 1. SAUSAGE-LIVER WURST-PREPARED MEATS-PORK, PREPARED OR PRESERVED. Certain sausage (liverwurst), composed principally of pork, but containing a substantial amount of material which is not pork, and which is not inserted for seasoning, but for distinct meat purposes—such as veal, calf's liver and liver without designation of its variety-cannot be classified as pork, prepared or preserved under paragraph 703, Tariff Act of 1930. It was properly classified as meats, prepared under paragraph 706. The doctrine of component material of chief value not applicable. United States v. Weber, 6 Ct. Cust. Appls. 234, T. D. 35469, decided on issues not in this case, not controlling. 2. CONSTRUCTION, PARAGRAPH 703-NOSCITUR A SOCIIS. The rule of noscitur a sociis held applicable in the construction of paragraph 703. The legislative history of the paragraph shows that, in its enactment, the apparent legislative intent was to group together all swine and also all pork products not otherwise more specifically provided for. The paragraph was not intended to include products such as are here involved. United States Court of Customs and Patent Appeals, November 30, 1936 [Affirmed.] APPEAL from United States Customs Court, T. D. 47966 Walden & Webster (Edward F. Jordan and J. L. Klingaman of counsel) for appellant. Joseph R. Jackson, Assistant Attorney General (Joseph F. Donohue, special attorney, of counsel), for the United States. [Oral argument October 8, 1936, by Mr. Jordan and Mr. Jackson] Before GRAHAM, Presiding Judge, and BLAND, Hatfield, GarRETT, and LENROOT, Associate Judges GRAHAM, Presiding Judge, delivered the opinion of the court: The appellant imported certain sausage under the Tariff Act of 1930, at the port of New York. There were several shipments, and, after classification by the collector, fourteen protests were filed. By stipulation, protest 634676-G/38716 and its accompanying appraiser's and collector's reports were agreed to be typical, and are reproduced in the record. The goods were classified under paragraph 706 of the Tariff Act of 1930 as "prepared meats, not specially provided for" and are claimed in the protest to be dutiable under paragraph 703 of said act as "other pork, prepared or preserved." The competing paragraphs are as follows: PAR. 706. Meats, fresh, chilled, frozen, prepared, or preserved, not specially provided for, 6 cents per pound, but not less than 20 per centum ad valorem. PAR. 703. Swine, 2 cents per pound; pork, fresh, chilled, or frozen, 21⁄2 cents per pound; bacon, hams, and shoulders, and other pork, prepared or preserved, 31⁄4 cents per pound; lard, 3 cents per pound; lard compounds and lard substitutes, 5 cents per pound. On the trial before the United States Customs Court, several witnesses were called and examined on behalf of the importer and of the Government. In addition, a deposition of one Reinhard Witte, taken on behalf of the importer, was introduced in evidence. The method of manufacture of the imported material was shown by the testimony of the witnesses Gastmeyer and Eschenheimer. The latter witness thus described the process of manufacture: There are various ways of manufacturing liverwurst, but all with slight exceptions, they are identically the same. One party may take the liver and put that through the grinder first; another party may take the liver directly, which saves one operation; another party may take a liver in, scald the liver before grinding; and the other one may-The most common practice, the liver is scalded about 60 per cent scalded, then ground through a grinder, and from there transferred to a silent cutter, and in the silent cutter, pork is added to the liver, also the spices, and veal or such substance as may be added, or beef, any substance. You may add any substance there. From there you transfer it to the stuffing table, stuff it in casings, and from there you take it to the cooking tank, and cook the liverwurst anywhere from three-quarters of an hour to two hours, according to the size of the casing. After that the product is transferred to the smoke house, and then smoked, becomes the finished product. This witness also testified that it was not necessary to use pork liver in the manufacture of liverwurst, but that lamb or veal or beef liver might be used. The deposition of the deponent Witte furnished a table showing the constituent elements of the items which are involved here, together with the amount and value of the same. In this deposition, the various kinds of sausages imported are referred to as Nos. 18, 19, 20, 22, and 26, and the constituent elements of each mixture are given. On the hearing in this court, the appellant concedes that the deposition is not in sufficient detail as to items 19 and 20, and the appellant has, therefore, moved to dismiss the appeal as to the protests covering these items. The details, therefore, of such items will be omitted here. Mixtures 18, 22, and 26 are given, as follows: The United States Customs Court overruled the protests, holding that the imported articles were properly classified by the collector as to all items except item 19, Anchovy-leberwurst, and item 20, Truffle-leberwurst. These items, having been included in the motion to dismiss, need not be further alluded to. The various protests were consolidated for trial in the court below. The matter comes to us on the importer's appeal. Counsel for the appellant conceded in the court below, and concede here, that liver is not pork for tariff purposes. They contend, however, that this case is ruled by our decision in United States v. Weber, 6 Ct. Cust. Appls. 234, T. D. 35469, and that under the ruling in that case the imported products should be classified as "pork, prepared or preserved." Counsel also rely to a considerable extent upon our decision in B. Westergaard & Co. v. United States, 19 C. C. P. A. (Customs) 299, T. D. 45469, contending that the latter case is authority in support of the contention that inasmuch as the component material of chief value in the imported materials was pork, these articles should be classified as "pork, prepared." On the other hand, Government counsel contends that the merchandise at bar is not pork, prepared or preserved, within the common meaning of that term, and that liverwurst, even though in chief value of pork, is excluded from classification in said paragraph 703 under the doctrine of noscitur a sociis. It is argued by Government counsel that liver is not classifiable as beef or pork. In schedule 7 of the Tariff Act of 1930, headed "Agricultural Products and Provisions," the various ordinary meat products are grouped. An inspection of the various paragraphs shows that the apparent intent was to group in each paragraph specific kinds of animals and their meat. Thus, in paragraph 703, swine and the pork product of the same, including lard and lard compounds, are named. Incorporated is the language here in question, "and other pork, prepared or preserved." This language first appeared in the Tariff Act of 1922. When H. R. 7456, afterwards the Tariff Act of 1922, was introduced in the House, paragraph 703 thereof was, in part, as follows: PAR. 703. Swine, one-half of 1 cent per pound; fresh pork, three-fourths of 1 cent per pound; bacon, hams, and shoulders, of pork, prepared or preserved, * * *. The United States Tariff Commission suggested that this language be changed, in stating the following in the Summary of Tariff Information, 1921, prepared for the use of the Ways and Means Committee of the House: Suggested changes.-Pickled or cured pork which is in part dutiable under paragraph 706 constitutes by far the largest item in our pork trade. To maintain the general plan of bringing together the principal hog products, it is suggested that "shoulders, of pork, prepared or preserved," be replaced by "all other pork, prepared or preserved, and not specially provided for." (See Summary of Tariff Information, 1921, p. 642.) The Congress adopted the suggested changes. From this circumstance, it seems quite obvious that it was the intent of the Congress to group together the principal pork products in one paragraph, and that no other purpose was involved, such as bringing other products into this paragraph aside from hogs or pork products. It is argued that the Weber case, supra, is authority in support of the view that the addition of these words "other pork, prepared or preserved," was intended to carry into this paragraph products like those imported here. That case concerned pâté de foie gras, classified by the collector under paragraph 229 of the tariff act of 1913, as "poultry prepared in any manner." It was claimed to be free of duty under paragraph 545 of that act as "meats of all kinds, prepared or preserved, not specially provided for." The merchandise was composed of pieces of goose liver, seasoned with salt, pepper, and truffles, and packed in a can which was lined with finely ground meat composed of trimmings from goose livers mixed with fat pork. The pork constituted about one-fourth of the combination, and goose liver the remaining three-fourths. It was contended by the importer that the word "poultry" referred only to live fowls, or whole, or nearly whole, dead ones, and that the term "poultry ** prepared in any manner" could not properly apply to the imported material, since it was made of only part of the fowl. It was also contended by the importer that the same material had been held in repeated decisions of the board and courts to be dutiable as prepared or preserved meat, and that this should be given controlling importance. The Government contended that for the first time, in the act of 1913, the language was added, "or prepared in any manner," and that, therefore, it ought now be classified as "poultry, prepared in any manner." This court considered the Congressional history and found that in the Notes on Tariff Revision the attention of the Congress had been called to the fact that, if the language of the poultry provision was left as originally drawn, meat of ducks, packed in tins, must be held dutiable as meats, and not as poultry, and that thereafter the Congress amended this provision, adding the words, "prepared in any manner." This court then concluded that it was the intent of Congress to include all edible parts of a fowl as pâté de foie gras in this new provision for "poultry, prepared in any manner," and, as a result of this conclusion, under the issues raised, ordered the goods to be classified under said provision rather than as "meats, prepared or preserved.” We cannot agree that the Weber case, supra, is controlling of the issues here involved. The case was decided on issues not in the case at bar. Appellant next relies upon the opinion of this court in the Westergaard case, supra. In this case, merchandise consisting of fish balls, fish cakes, meat balls, and meat cakes, imported in cans, was classified under the provision for "soups, pastes," etc., in paragraph 773 of the Tariff Act of 1922. The importer protested, claiming these importa |