The opinion
Bland, Judge,
concurring: It is with some reluctance that I concur in the result of the decision in this case, which holds that under the stipulation it is not shown that the polo helmets are requisite either for the playing of the game 'of polo or for the protection of the polo player. The stipulation might be regarded as sufficiently broad, when considered with the sample before us, to bring the importation within the rule laid down. However, it may be contended that, while courts may take judicial notice of games, equipment, etc., they may not take notice of the use and purpose of the use of an article. I entertain some doubts on this question, and shall not oppose the settled convictions of my associates on this point.
If the ruling opinion attempts to lay down a rule for future guidance in connection with classification under paragraph 1402, it is not, in my opinion, sufficiently definite. I do not like the use of the word “necessary” unless its use be defined or limited. “Necessary” might convey the idea that the article was indispensable to the game or exercise. I do not think Congress meant to limit the equipment to those articles which are so essential or necessary to the game as to make it impossible to play the game without the article; nor1 do I think, on the other hand, that it meant to include a great many articles of surplus or incidental equipment which may be appropriate to use in the game or exercise, but which are not so dedicated to, or *520 designed for the use in the game or exercise, as to bring them within the meaning of the words “other equipment” as used in the paragraph.
If the proof had shown, in this case,, that the thick cork padding and other items of construction of the helmet had been so made for the protection of the player, or that the helmet was ordinarily worn or used in the game or exercise so as to promote its efficiency or safety, then, in that instance, it should be regarded as “equipment” under paragraph 1402.
I have in mind two articles which illustrate my thought. Heavy padded football pants, under proof or stipulation, showing that they were ordinarily worn by the football player when engaged in the game of playing football and that this was their chief use, and that the construction and design of the pants were so designed as to dedicate them to this use, clearly should fall within paragraph 1402. As has been well said, in Judge Smith’s-opinion, if the use is dictated by fad, fashion, or fancy, then it should not be regarded as such “equipment” as Congress had in mind when using the term. Golf trousers are not so dedicated to the game of golf as to bring them within the paragraph, although golf may be their chief use.- While golf experts may draw some fine distinctions between the effect of wearing different kinds of wearing apparel while playing the game of golf, it would seem to me that the difference between wearing a pair of golf trousers and a pair of tennis trousers while playing the game is not sufficient to justify the conclusion that golf trousers possess any unusual characteristics which dedicate them to the game in such a way as to distinguish them from other kinds of trousers that might appropriately be worn in the efficient playing of the game. Trousers are needed in the game of golf, but not necessarily golf trousers. Trousers are needed in the game of football, and, I think, football trousers are needed. Not only are they needed, but by virtue of their construction and use they are especially dedicated to the game. Yet, it can not be said -that they are necessary to the game, if by “necessary” we mean indispensable.