Evans, Judge:
This is an action against the United Statés wherein the plaintiff seeks to recover a sum of money claimed to have been unlawfully exacted as customs duties at the port of New York on an importation of peat moss shipped from Germany to this country. The collector of customs assessed duty at 50 cents per ton under the provisions of paragraph 1548 of the Tariff Act of 1930. The importer claims that the merchandise is entitled to be entered free of duty under the provisions of paragraph 1685 of the same act. We quote the provisions of the statute involved herewith.
Pab. 1548.' Peat moss, 50 cents per ton.
Free List
Pab. 1685. Guano, basic slag (ground or unground), manures, and (notwithstanding any other provision of this Act) those grades of all other substances used chiefly for fertilizers, or chiefly as an ingredient in the manufacture of fertilizers.
It was held by the Court of Customs and Patent Appeals in the case of Wilbur-Ellis Co. et al v. United States, 18 C. C. P. A. (Customs) 472, T. D. 44762, at page 479, as follows:
While the common or commercial meaning of an eo nomine designation in a tariff act must be determined as of the effective date of that act, we think that where it is provided that an article shall be classified under a particular provision of a tariff law if chiefly used for a specified purpose, a different rule should prevail. In such case, if there be an eo nomine designation, the common meaning thereof must be determined as of the date of the enactment of the tariff act, but if it is further provided that the thing designated shall be classified under a given provision only if chiefly used for a specified purpose, the question of use should be determined, not as of the effective date of the tariff act but as of the date of the importation of the particular merchandise involved or immediately prior thereto.
It must be conceded that tbe principle announced in the above ruling will apply in this case.. The Government in its brief states what it conceives to be the burden placed on the importer as follows:
Because of the peculiar language of paragraph 1685 the instant case is somewhat different from the ordinary classification case. Plaintiff could not, of course, deny that this article is peat moss and ordinarily dutiable under paragraph 1548 which provides eo nomine for peat moss. However, paragraph 1685 provides that notwithstanding any other provision of the Tariff Act, if an importer brings its commodity within the language of that paragraph then of course its claim should be upheld. It is incumbent on the plaintiff, therefore, to prove that the instant peat moss is within the language "those grades of all other substances used chiefly for fertilizers, or chiefly as an ingredient in the manufacture of fertilizers." So far as the latter part of paragraph 1685 is concerned, it is respectfully submitted that there is no proof in this record that peat moss is chiefly used as an ingredient in the manufacture of fertilizers, nor does the plaintiff argue that claim in its brief. The issue, therefore, is whether or not peat moss is a substance used chiefly for fertilizers.
Although the provision in paragraph 1548, supra, is an eo nomine designation without qualifying words, nevertheless Congress has inserted language in the fertilizer paragraph (1685) which shows an express intention that in the case of those grades of all substances other than those specifically enumerated, free entry shall be granted "notwithstanding any other provision of this Act."
Peat moss is defined in Webster's New International Dictionary as follows:
Any moss from which peat has formed; specif., sphagnum moss.
We also quote from the Encyclopaedia Britannica 14th edition, Yol. 9, page 190, from the article on fertilizers as follows:
Fertilizers. The words fertilizer and manure denote any substance that increases the productiveness of the soil, but in scientific agricultural literature the word fertilizer is confined to materials prepared artifieally that supply nutrients to the plant, the word manure being more generally applied to substances like farmyard manure and lime that improve the soil in other ways besides supplying nutrients.
The New International Encyclopaedia, in Vol. 18, page 238, gives the following information in regard to peat:
Peat was formerly used extensively as a fertilizer, particularly in the form of compost (q. v.), but its use has declined since the general introduction of the more convenient and efficient commercial fertilizers. (See Manures and Manuring.) Its fertilizing value is not so high as its percentage of nitrogen would indicate, because this nitrogen is in a very unavailable form. Dried peat, and especially peat moss, is an excellent absorbent and is used to a considerable extent as a litter in stables with very satisfactory results. It is also used to some extent (4800 tons in 1913) in the United States (as already stated) and to a considerable extent abroad in the manufacture of so-called peat molasses, a cattle food prepared by mixing the crude molasses from sugar factories with dried ground peat.
Under the heading "Organic Manures" the Encyclopaedia Britannica, at page 196 of Vol. 9, mentions straw, peat, moss, and bracken being used for litter and further states that such litter on decomposition adds valuable fertilizing material to the manure.
At the trial of the case a sample of the imported commodity was received in evidence and marked as Exhibit 1. It was designated by the different witnesses as horticultural peat moss. Two other samples were admitted in evidence as Illustrative Exhibits A and B. Ulus- trative Exhibit A is a grade known as poultry peat moss because it is a type that is generally used to spread under chicken roosts in hen houses. Illustrative Exhibit B was designated as stable peat moss because of its claimed use as a bedding material in stables.
The first witness called by the plaintiff was the vice president of the Peat Import Corporation who, because of his long experience in the importation, sale, and distribution of peat moss, was able to testify to the chief commercial use made of the imported commodity. According to his testimony there were imported into the United States during the year 1938, 62,032 long tons of peat moss and his firm imported 32,422 long tons. In other words, its importations constituted 52.3 per centum of all the imports of this commodity made during that year. Further he testified that of his total imports 50.18 per centum was made up of horticultural peat moss like Exhibit 1 and that the remaining portion was either poultry peat or stable peat, which he stated was the trade designation for the two coarser grades. He also stated that he had seen grades of peat moss used; that he had made sales thereof throughout the United States, and that the usual sales were in carload lots made up of two grades, horticultural and poultry; and that there was very little of the stable peat moss used. He also testified that he had seen the horticultural grade used many times over the entire United States. The witness in answer to questions gave the following testimony:
Q. Now, have you actually seen the peat moss of the what you call horticultural grade used? — A. I have many times.
Q. And has that been confined to any particular section of the country or has it been-A. No, that has been over the entire United States. I have seen it used for soil incorporation in greenhouses; I have seen it used outside for soil incorporation in growing most all kinds of plants, particularly the acid-loving group of plants; I have seen it used inside the greenhouse for propagating medium; I have seen it used in the preparation of potting soil mixtures; and within the last year and a half I have seen a good many bales used in the South by tobacco farmers for soil incorporation into the tobacco plant bed; and within the last year there has been a great deal of work done on the use of peat moss mixed in with the soil in setting out new orchards. That is a recent development where I personally have been in contact with a good many people that have used it in that way; and I have been in contact with Dr. Tukey at the New York State Experiment Station, Dr. H. B. Tukey, who did a lot of experimental work on peat moss for that purpose, and it has gone over very well with the commercial orehardists who are setting out trees.
With reference to the uses made of the grade represented by Illustrative Exhibit A we quote the witness' statement as follows:
Well, it is used as a bedding under the chickens. The peat moss is used for 2 main purposes, first, under baby chicks. The peat moss is put on the floor of the brooder house before the baby chicks are put in. The baby chicks are put directly on the peat, and after the peat has been in the brooder house for some 8,10,12, up to 16 weeks, until the chicks are big enough to be turned out to range, the peat is left in there. Then the houses are cleaned out and the peat moss poultry manure is spread on the fields. Exactly the same procedure is true in so far as bedding or using peat moss as a litter for mature chickens. The ordinary plan is that the peat moss is put on the floor of the poultry house along in September or October, and it is left in the poultry house until, normally until the follow-spring, when it is taken out and spread on the fields, the peat moss poultry manure.
Q. That is the peat moss of the poultry litter grade is spread on the fields with accumulated natural manure? — A. That is right.
As to tbe use of tbe peat moss represented by Illustrative Exbibit B, this witness stated:
the use of stable bedding isn't as widespread as the use of the other 2 grades. In other words, it is confined primarily along the Eastern seaboard.
Q. Yes. And how is it used, under your observation? — A. Well, it is Used as a bedding under large animals, particularly horses and cows. The peat moss is put on the floor of either the cow stables or the horse stables, and when it becomes saturated with the liquid and the solid manures it is taken out of the stables and spread on the fields.
This testimony bas some materiality as showing that 47.7 per centum of tbe witness' importations of peat moss may bave been chiefly used as an ingredient in tbe manufacture of fertilizer. However, we do not pass on tbe question as to whether Jthe ¡process described constitutes a manufacture.
Tbe plaintiff introduced tbe evidence of a professional chemist who analyzed tbe sample of tbe imported commodity and testified as to tbe results of bis analysis, which we copy herewith.
As received Dry
Moisture_ 16. 95%
Total Organic and Ammoniacal Nitrogen (N)__ 9. 92 1. 18%
Total phosphoric Acid (P205)_ 0. 12 0. 14
Total Potash (K2Q)_ 0. 22 0. 26
For purposes of comparison we set forth herewith tbe analysis as made by tbe Government chemist as shown by Exhibit 6.
As received Dry condition
Phosphoric acid (P205)_ 0.029% 0.035%
Potash (KzO)- 0, 094 0. 115
Nitrogen (total organic)_ 0. 817 1. 000
Nitrogen (ammoniacal)_ trace trace
Moisture_18. 34%
Professor Alex Laurie, who is in charge of tbe work pertaining to floriculture at Ohio State University, testified that prior to bis present position be was engaged in teaching at Michigan State College, doing tbe same class of work. He stated that be bad been called as a consultant in almost every state in tbe Union along tbe lines of growing crops. He bolds degrees from Cornell and Washington Universities. He stated that be worked 4 years while at Michigan University doing research work in connection with peat. He produced a bulletin which had. been prepared in connection with his work there which was later received in evidence as Exhibit D. With reference to his experience in the use'of peat moss he testified as follows:
We have used peat incorporated in the soil and on top of the soil for a great many crops, both in the greenhouse and out of doors. In every instance there has been an increased growth because of the use of peat. We analyzed the peat at different times to see how it checked with any other'materials which would produce and stimulate growth, and we found that the peat contained at least more nitrogen than the average manure. On the basis of that we felt that it really has a fertilizing value.
He stated that the peat moss be worked with came from Germany and that it was uniform in character and that he had made 30 or 40 analyses during the time they were experimenting with peat moss. He examined Exhibit 1 and Illustrative Exhibits A and B and stated that with reference to the granular grade (Exhibit 1):
It was used in the soil as part of the soil. It was likewise used as a mulch on top of the soil, and in addition to that it was used alone, without any soil.
He produced exhibits in the form of photographs of growing plants which he claimed had been developed in his experiments. The first one shows two plants of cyclamen, one grown in soil with a mixture of one-fifth peat moss and the other in soil alone; two cosmos plants, one grown in soil and peat and the other in soil; two lettuce plants, one grown in soil and peat and one in soil; two radish plants grown under the same conditions, and two zinnias, one grown in a mixture of soil and peat and the other in soil. These were received as Illustrative Exhibits E to I, respectively, for the purpose of picturing the results about which the witness testified. The effect of this testimony was that when the soil was mixed with peat the plants made a better growth than when grown in soil alone.
The witness was asked whether the improved results described by him and as pictured in the illustrative exhibits were due to a fertilizer effect or to an aerating effect on the soil, and he answered:
I would say both. If I may add, we have grown some types of plants in peat alone, without adding any fertilizer, and they grew satisfactorily, which indicates that there is enough nourishment apparently for that type of growth.
He further stated that peat moss of this character is used as a filler frequently and as to that use he gave testimony as follows:
Q. Well, have you noticed any effect by the addition of peat moss? If you have give an illustration. — A. In one particular instance in Ohio the 4-12-4 fertilizer was made with peat as a filler, and that showed upon analysis that because of the addition of this filler of peat that the nitrogen content was boosted to close to 5 instead of the 4.
Q. That is, as I understand, their fertilizer designated as 4-12-4, the first 4 means — A. Per cent of nitrogen.
Q. And when peat moss was added that percent of nitrogen went from 4 to nearly 5, is that correct? — A. Right.
Q. Now, what does that prove to you? — A. It proves that it must contain fertilizer value.
Dr. Raymond 0. Allen testified that he is an instructor in floriculture and ornamental horticulture in the Department of Floriculture and Ornamental Horticulture at Cornell University, which position he has occupied for 4% years. He is a graduate of Massachusetts State College and holds a doctor's degree from Cornell. His particular field is the basic plant materials, which means gardening and garden flowers. He is also in charge of the Cornell test gardens where they carry on experiments in the care of garden flowers and garden maintenance. He gives lectures and conducts correspondence courses throughout the country in connection with garden problems. He stated that he had a good deal of contact with peat moss of the land represented by Exhibit 1 and Illustrative Exhibit A. He stated:
I have carried on a great many experiments in the preparation and fertilization of soil and in connection with that work peat moss has been used along with many other different comparable materials. The peat moss has always given us very striking results.
He testified that the object of one type of experiment was to determine just how much peat moss should be added to various types of soil. He produced a photograph of five petunia plants grown in soil alone, soil mixed with various percentages of peat moss, and peat moss alone. His conclusions from his experience are as follows:
My conclusions are that when peat moss is mixed with a soil or added to a soil it improves the growth of plants. Like anything else, it is possible, perhaps, to add too much of something. It is certainly possible that the plant which is growing here in pure peat moss is receiving more nutrients than it can use and the plant is, therefore, injured by it. However, when the peat moss is applied in varying proportions, as we can see here in this illustration, the more peat we add, up to a certain point, the better is our growth.
On cross-examination this witness was asked:
X Q. Is it not a feet that peat moss is used with sandy soil in order to retain the moisture?—
To this question he answered:
That is one of its attributes, but it is by no means its most important one.
X Q. Isn't it the principal attribute?- — -A. No.
He was asked if he had occasion to read the Department of Agriculture annual reports and said that he had read some of them, whereupon the following testimony was elicited from the witness:
X Q. Is it not a fact that they do not agree with you that peat moss is a fertilizer? — A. I do not recall any direct statement to the effect that peat moss is not a fertilizer. However, I would say this, that to my knowledge no one in the United States Department of Agriculture has carried on any extensive experimental work in the use of peat for horticultural purposes, which I have,
X Q. I have a number of pamphlets here published by the Department of Agriculture on the use of peat moss. One of them contains the statement: "Peat moss is not a fertilizer, but general importance is attached to its value as a composting material, as a conditioner or filler for concentrated mineral fertilizers, and as an absorbent in places where sewer systems have not been constructed." Do you agree with that statement? — A. No, I think that the individual that wrote that has not made an exhaustive study of the subject.
Mr. P. W. Zimmerman stated that he is a research physiologist at the Boyce Thompson Institute for Plant Research at Yonkers, N. Y., where he is assistant director, and that his duties are primarily research in plant physiology. He describes the purpose of the Institute as follows:
to study the growth and development of plants, plant diseases, culture of plants, etc. We conduct extensive researches, publish the results of our investigation, and then make these publications available to the public. They are given to scientists, students, teachers, and they are sold at less than cost to commercial concerns.
He first became associated with the Institute in 1924 and has been on full time since 1927. He began his career as a farmer in Iowa, and holds three degrees from the University of Chicago and a diploma from the Illinois State Teachers' College. He was in charge of the College of Agriculture and the Department of Botany at the University of Maryland. He stated he had used peat moss since the winter of 1927; that his experience in the use of peat moss had been largely with the granulated peat moss like Exhibit 1.
He gave testimony as follows:
Q. Well now, limiting yourself at this time to the granulated peat moss will you state just what your experience has been, what you have done? — A. I first conducted experiments to determine possible value of peat moss to the soil as fertilizer. I studied the effect of mixing soils, sand and peat moss, of using peat moss with different species of plants, studied it specially in connection with the ericaceous types like rhododendrons, azaleas, blueberries, holly, and so forth.
•Q. And what were the results of your experiments? — A. The results of our experiments indicated that when peat moss is applied to the soil and used for rhododendrons, azaleas, blueberries it has a special fertilizing value which could not be obtained by the use of pure chemical fertilizer. We noted also that it improved the physical condition of the soil, that plants grew better after we had mixed peat moss and soil than they did in either the peat moss alone or in the soil alone. We have, however, grown many species of plants from seed to seed in peat moss alone, indicating that peat moss has all of the essential elements for plant growth.
He gave his conclusions as follows:
I conclude that peat moss has in it all of the essential elements for plant growth and that we can fertilize soil by adding peat moss to it; that is especially beneficial for certain species of plants, and that applies to ericaceous types, tomatoes, potatoes, and so forth.
This witness stated that he had soaked peat moss in water and used the liquid afterward and that the use of the liquid on plants in creased the growth, of the plant which indicated to him that there are special essential elements there for the growth of plants.
Mr. Frederick Frye Rockwell testified that he was a landscape architect by profession and Garden Editor of the New York Times; that he had used peat moss in garden work for many years, and he stated:
I found by applying that to the soil I got a very increased growth of practically all plants that it was used in connection with, and especially so in connection with the ericaceous rhododendrons and azaleas, and things of that kind.
This witness also stated that he had seen peat moss used by others both in the commercial and the amateur field in the northeastern part of the United States and also on the West Coast. On cross-examination he was asked:
X Q. Do you attribute the use of this peat moss in the soil to the fact that it has great powers of containing moisture?
To this he answered:
It does have moisture retaining qualities, but it is very evident that it has other qualities in addition to that.
Mr. Albert E. Hitchcock stated that he is a plant physiologist at Boyce Thompson Institute for Plant Research in Yonkers, N. Y., where he has been employed since 1925. He is a graduate of the University of Michigan, the University of Maryland, and Columbia University. His field of work consists of studying the influence or the effect of various substances on the growth of plants, particularly on the growth of cuttings and plants propagated from cuttings. His use of peat moss has been confined to the type represented by Exhibit I herein. In his work he was endeavoring to determine the best medium for rooting cuttings and he used peat moss and various mixtures of peat moss and sand and different kinds of sand and also other materials, such as slag and soil. From the studies which he described, he states:
It finally became evident in at least many cases, depending on the variety of plant we were using, that there was present in peat moss the essential material that the plant needed for the type of growth that it made; in some cases from seed to fruit.
Q. Would you say that those results were due entirely to the moisture absorbent qualities of peat moss? — A. No, not entirely.
Q. What do you attribute it to beside that? — A. I attribute it to a combination of factors; the fact that in some cases it may influence the moisture content so that it is favorable, but that isn't the sole factor. In other cases it may be acid reaction. In other cases it is definitely something which by means of chemical elements, as such are known, can't be supplied in any other way. I have particular reference to rhododendrons, in which the use of peat moss gave results that could not be duplicated by any chemical constituent.
Mr. Adolph Kruhm stated that he was a horticulturist, writer on horticultural topics and home gardener; that he is the Garden Editor of the World Telegram. He was graduated as a horticulturist in Germany 34 years ago and subsequently was in charge of the Burpee Experiment Station, and also had two other experiment stations in Ohio. He stated that he was acquainted with horticultural peat moss, the grade here under consideration. He described his own experience in developing a garden and arboretum of his own by the use of peat moss. He concluded by saying:
I can only say this: I have applied peat in its various ways, by putting it beneath the individual plant, by sowing it in rows. Among our garden neighbors in Hempstead as well as in Connecticut and Jersey' — I only speak for the metropolitan area where it has come under my personal observation — peat has come to be looked upon as the greatest substitute for manure which can be had. We are using it, we depend on it, and I swear by peat.
On cross-examination he was asked if he didn't consider that one of the principal characteristics of peat moss was its moisture retaining qualities to which he answered: "I couldn'tjsay so."
He then gave the following testimony:
X Q. You don't know as a matter of fact that the reason why you have better success with peat moss is because it has fertilizing elements? — A. It took me a long time to find out that it did have, but ,. finally became convinced that it had. We used artificial fertilizer along with peat moss on other plants, but the use of artificial fertilizer always reminds us of giving a patient a shot in the arm. The next day it was through the sieve and gone.
The defendant called Mr. Selman A. Waksman, who is engaged as a microbiologist for the New Jersey Agricultural Experiment Station and professor of soil microbiology at Rutgers University, where he has been since 1921. He is "primarily engaged in research work, dealing in micro-organism of the soil, such as the bacterial soils and others, and study of decomposition of plants and the formation of humus materials, as well as a certain amount of teaching." After being graduated from Rutgers he became an assistant in soil bacteriology and he took his Master degree at Rutgers, and later received a Doctor's degree at the University of California. He stated that he began to study peat moss about 1924, and in connection with his studies he visited the most important peat-bearing areas in different parts of the world. He has been in Germany where German peat moss is produced, in Sweden where Swedish peat moss is produced, and in Russia where Russian peat moss is produced, and he has visited the peat moss area in the State of Maine, largely in the northern part. He defined peat moss as "a humus material which is produced in the presence of an excess of water." He stated:
Peat moss ordinarily, to consider only the fertilizer elements, namely, nitrogen, contains about 1 per cent nitrogen, usually a little bit less, frequently a little bit more, but about 1 per cent. It contains very little potash, not more than a tenth or fifteen-hundredths of a per cent; contains very little phosphoric acid.
In other words, peat moss chemically consists of very limited amounts of those elements which are essential for plant growth.
He then gave the following testimony:
Q. Then, Doctor, will you tell us, please, whether or not in your opinion peat moss is a fertilizer? — A. Not in the sense as a fertilizer is commonly considered. We commonly consider a fertilizer a material which is added to the soil or to a nutrient medium to supply the necessary nutrients of plant growth. Peat moss cannot do that and, therefore, we cannot consider it as a fertilizer. However, peat moss may be considered as a soil-improver or a soil conditioner, because it is added to the soil to improve the physical condition of the soil, thus making the soil a much more favorable medium for plant growth, but without the necessary nutrient elements. The plants will not grow in peat moss alone or they will make only a very limited and stunted growth.
On cross-examination this witness stated that he had found the three elements necessary to the promotion of plant life, viz, nitrogen, phosphorus, and potash, present in peat moss, but in a limited quantity. He qualified this statement by saying that these elements are necessary to the propagation and promotion of plant life "if they are in available form." It was his opinion that these elements were available in peat moss to a very limited extent.
Mr. Irving O. Feustel also testified on behalf of the defendant. He stated that he is employed by the Bureau of Agricultural Chemistry and Engineering in the Department of Agriculture and had been in the Department of Agriculture for over 13 years, during 10 years of which time he had been engaged in research on various problems connected with peat, such as the physical and chemical properties, composition, a;:d functions of peat when incorporated with the soil. He testified that he had studied various kinds of peat including moss peat or peat moss; that the peat moss he had studied had been principally from Germany. This witness stated he had obtained a Bachelor's degree from Washington State College, a Master's degree from George Washington University, and a Doctor's degree from American University.
When asked to detail his experience with peat moss he gave the following testimony:
My experience with peat moss has been that if plants are grown either in mixtures of peat moss with sand or alone that plants will not make satisfactory growth unless fertilizers are also added. I have determined specifically that fact with respect to nitrogen, which is the only element that peat moss could supply, since potash and phosphoric acid are present only in negligible quantities. Since peat moss has a content of approximately 1 per cent nitrogen it is conceivable that peat moss could be used as a source of nitrogen were that nitrogen available. However, I have found that in mixing peat moss with sand, the sand itself furnishing no nutrients, then by adding all the essential elements except nitrogen to this jnixture I find that the plant will not survive or will not flourish unless nitrogen also is added. That is, namely, the conclusion to be drawn from that is that peat moss does not supply sufficient nitrogen for the plant to grow.
And further:
Now, have you ever tried to grow any plant material in pure peat moss? — A. Yes, I have, and I find there the same thing, that nitrogen must be added to get a satisfactory growth.' I do not say, however, that the peat can furnish no nitrogen. I merely say that the nitrogen supply is insufficient, and if it is insufficient in the pure medium of moss peat it seems that is a pretty good test of whether or not there is sufficient there to consider it as a fertilizer.
He gave it as his opinion that peat moss is not a fertilizer. He stated that it is a soil conditioner, that is "it functions to improve the physical structure of the soil, its permeability to moisture, air, and the physical properties in general." When asked whether if a plant could be produced from seed to seed in peat moss alone, he would not say that peat moss contained all the nutrient elements for growth, he answered:
If that were the case I would say that the peat moss did furnish the necessary elements.
He then was shown Illustrative Exhibit J, one of photographs referred to above, and his attention was directed to the fifth plant from the left on that exhibit, and the explanation was made to him that the testimony had shown it was grown wholly from peat moss. The question was then asked him.:
How does that compare with your experiments?
He answered:
I have been unable to obtain results of that kind, and I would seriously question whether that was grown without any addition of fertilizer constituents, in pure peat moss.
Q. That is, you would dispute the testimony of the witness that testified to that as a fact? — A. I would seriously question that that plant had been grown from the very, beginning till its present stage in pure peat moss without anything added. I would seriously question it.
When his attention was called to Illustrative Exhibits E, F, G, H, and I, and to the statements as to the media in which each was grown, this witness said: "That proves nothing." He stated:
This is an entirely different problem here because we have the presence of soil, and the extent to which the soil furnished the nutrients there is not indicated and is probably not known, and the increased growth that resulted from the addition of peat there I would say was its soil conditioning effect, which has been demonstrated in my own experience as having a very beneficial effect on plant growth, which is not due to the nitrogen or any other fertilizer constituent that the peat contains.
This witness also testified in answer to questions, as follows:
X Q. Then what was it due to? — A. That has not been entirely explained, but I have shown it in my own experiments to not be due to fertilizer, because I have taken and compared the growth such as he has there, and where I have added the same fertilizers in each case, one pot without peat and one with peat, and I find that beneficial results are obtained which can be ascribed only to the physical conditioning effect that the peat moss has.
X Q. Well, if a plant is grown in soil and it produces a certain growth and another plant is grown in a medium made up of a portion of that soil and a portion of peat moss and produces a much larger growth under the same conditions of moisture and sunshine the peat moss must do something, must add something to the medium in which it is grown; isn't that correct? — -A. Not from the nutrient standpont.
X Q. Well, from what standpoint then do you attribute the results that you see in those exhibits? — A. I attribute that to the improvement of the mechanical or physical condition of the medium in which the plant is grown.
X Q. And just how would that improvement be affected by the peat moss?— A. It would improve the aeration and the movement of moisture primarily.
This witness was asked to distinguish, between soil-conditioning properties and fertilizing properties and answered as follows:
I draw a very sharp distinction. A material that is added to the soil primarily to supply a plant, a growing plant with nitrogen, potash or phosphoric acid is a fertilizer. A material that is furnished primarily to condition the soil is a soil conditioner, although to some extent each material might function both ways, but the primary purpose determines whether it is called a fertilizer or a soil conditioner.
The following testimony was then given by this witness:
X Q. Do you think that the term "fertilizer" depends upon the particular amount of nutrient that may be contained in any particular substance? — A. There is no sharp line of demarcation about amounts, but that amourit must be sufficient to supply the plant with its required amount.
X Q. Is nitrate of soda a fertilizer? — A. It is.
X Q. Well, suppose I apply a very limited quantity of the nitrate of soda to the soil, not sufficient to supply the growing plant with all its needs in that regard, would that change the character of the nitrate of soda and would it cease to be a fertilizing element? — A. No, it doesn't cease to be a fertilizer; it just ceases to be used in the proper manner.
X Q, Well, why then do you say that the peat moss is not a fertilizer, because the nitrogen element, for instance, is low? — A. It is impossible to add sufficient quantity of it to serve as a satisfactory source of nitrogen.
Mr. Charles H. Connors, another witness for the defendant, stated that he is an ornamental horticulturist at the New Jersey Agricultural Experiment Station, professor of ornamental horticulture in Rutgers University, that he has been at the Agricultural Station 27 years. He stated that he had carried on no experimental work with peat moss, but that his experience with it has been on the basis of observations of its use in a practical way. He stated that peat moss is a soil conditioner and not a fertilizer in the modern definition of the word fertilizer. When asked to explain what he meant by "modern definition" he stated:
Well, the definition that is given in Webster's I think is in accord with the definition that was given in Van Slyke's along about 1912, in which a fertilizer is considered any material that may be added to the soil that will be beneficial to plant growth.
TMs witness said he would not want to accept the definition as given in Webster's Dictionary. His definition was as follows:
A fertilizer is a material which when added to the soil will supply in an available form those elements which the plant requires for growth, at least available in sufficient quantity that the plant can make use of them.
The witness was shown Illustrative Exhibit J and asked how he "would account for the fact that a plant can be grown from seed to the point of producing blossoms, as shown by that exhibit, wholly in peat moss, without the addition of any other element but merely with the application of the necessary amount of moisture and sunshine?" To this question he answered "I couldn't conceive of it." With reference to Illustrative Exhibit M the witness stated that in his opinion "the improvement would be due to the change in the physical nature of the medium in which the plant was grown."
Mr. Howard B. Sprague, an agronomist at the New Jersey Agricultural Experiment Station and professor of agronomy at Rutgers University, who holds two degrees from the University of Nebraska and a Ph. D. from Rutgers, testified that he had conducted experiments in the comparative value of various peat mosses from the standpoint of a soil conditioner rather than from the standpoint of whether they are fertilizers. He stated:
The seedling experiments that I mentioned in the beginning were not experiments designed to show how far one can grow plants in pure peat moss, but they did yield that nformation incidentally. We note, for example, that peat moss will not support the growth of seedlings indefinitely unless they are removed at the stage when the reserve food in the seed has been exhausted. The seedlings immediately begin to have the appearance of a plant in a partially starved condition, particularly with respect to nitrogen, that is, they become slightly yellowish, light yellowish, light green color, and those same plants when removed from peat moss and transferred to any sort of a medium which supplies the necessary nutrient elements, of course, begin normal growth.
Finally he was asked if peat moss in his opinion is a fertilizer, and his answer was "No."
On cross-examination this witness was interrogated as follows:
X Q. Well, wherever you did use the peat moss as an addition to the soil you found an improvement in the growth of the plant, whatever that plant may have been; is that correct? — A. Under controlled conditions in the greenhouse and the laboratory, yes. In the field very frequently harmful results, even from a physical standpoint.
In addition to the oral testimony catalogs of seed and nursery houses were introduced in evidence and it appears in all of these catalogs, save one, that peat moss is listed among the fertilizers which said concerns were offering for sale.
In the Summary of Tariff Information for 1929, page 2122, under the heading Peat Moss we find the following:
Peat moss is partly decayed vegetable or plant matter found in bogs. Ninety per cent of the domestic production is used as fertilizer, the remainder as stock feed. The imports are used principally as stock feed. It is used in foreign countries also as fuel. Other uses not extensively developed include manufacture of heat insulation, filler for molded resinous products, litter for stables, absorbent for getting gasoline from natural gas, and as a substitute for hardwood in making wood alcohol.
The New International Encyclopaedia, under the heading Manures, with reference to fertilizers, directs attention to the subject Manures and Manuring and we find at page 41, Vol. 15, the statements:
Other natural manures of secondary importance are peat, . Peat and the wastes mentioned are principally valuable for the nitrogen they contain, but this is very slowly available to plants and hence not of great value.
Bailey's Standard Cyclopaedia of Horticulture, Yol. Y, page 2517, under the heading "Peat" gives the following:
Peat is a kind of soil formed by the partial decay of plants in the swamps of the temperate zone. It is a standard potting material in greehhouse work for certain classes of plants, as ferns, orchids, heaths, rhododendrons, and other aricaceous plants, woody plants from Australia and the Cape of Good Hope, and many other choice and difficult subjects.
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In American greenhouse work peat is valued more for its porous moisture-holding properties than for its plant-food. If dried, it may be used as an absorbent for liquid manure "not so much for its inherent value," says Roberts (in his "Fertility of the Land"), "as for conserving the nitrogen in the manure, and for improving the condition of the stables." For this reason the half-decayed peat is extensively used in Europe, under the name of moss litter, as a bedding in stables, and later of course applied to the land.
It is clear that there is a sharp division in the testimony between the plaintiff's and the defendant's expert witnesses on the question of whether or not the imported commodity is a fertilizer or is only a soil conditioner. The testimony of both groups of experts, however, establishes that peat moss contains, at least in a limited quantity, substances such as nitrogen, phosphorous, and potash, which substances contribute to plant growth. The defendant's witnesses claim, however, that because these substances are not readily available they do not meet the requirements of a fertilizer as defined by them. They do not state or qualify the term "readily available" but we assume that in order to be a fertilizer according to their definition the life-giving elements must at once, on impregnation in the soil, begin to release the sustaining elements.
A reading of paragraph 1685 persuades one that Congress was intending to adopt a broad and liberal statute, so that there might be made available to the agricultural interests of the country any and all substances which would assist such interests in producing better crops. And it is our opinion that when Congress used the term fertilizers in said paragraph it was not thinking of the narrow and limited definition of fertilizer as defined in scientific agricultural literature, to wit, that the word was confined to materials prepared artificially that supply nutrients to the plant, but that it had in mind fertilizer as defined in the Encyclopaedia Britannica, Volume 9, in the following language:
Fertilizers. The words fertilizer and manure denote any substance that increases the productiveness of the soil .
or as defined in the New International Encyclopaedia, Volume 8, where it says:
Fertilizers. In agriculture, a generic term for substances added to soil to increase the growth of crops.
The record in this case amounts to a practical demonstration that peat moss, when added to the soil increases its productiveness, or, as the text says, increases the growth of crops.
The test in this case is not so much whether it is a fertilizer from the scientific or other standpoint, or not. Its chief use must be established. On that question there was but one commercial witness called. He was the vice president and secretary of the plaintiff corporation. By his uncontradicted testimony he established that his corporation imports a majority of the peat moss brought into this country, and his testimony was that a majority of the sales of his corporation were sales made where the peat moss was to be used as fertilizer. Under the broader definitions of fertilizer the testimony of the experts gives some support to the plaintiff's claim, in that the product accomplishes one of the objects of a fertilizer.
Inasmuch as this commodity is listed among the organic manures and fertilizers in the dictionaries and scientific works quoted above, and since the commercial catalogs introduced in evidence likewise name the commodity among the fertilizers sold by the different concerns, coupled with the statement in the Summary of Tariff Information, supra, it is a fair presumption that Congress considered peat moss a fertilizer. As above stated the testimony of a member of the importing corporation showed that the chief use of peat moss is as a fertilizer.
Based upon all the testimony in the case, including the various exhibits admitted in evidence, the court is of the opinion that the importer has made a case and that its claim for free entry under paragraph 1685, supra, should be and the same is hereby sustained.
Judgment will be rendered accordingly. It is so ordered.