DISSENTING OPINION
Bland, Judge:It is with reluctance that I respectfully dissent from the majority opinion, because I realize that it is a hard case on the record which is before the court. I dissent because I think the record does sufficiently show that the importation is not the plate glass referred to in paragraph 222 (a). I differ with the majority in its interpretation of the meaning and purpose of paragraph 222 (c). This court and the court below accepted paragraph 222 (c) as a definite and complete definition of plate glass. The context of the paragraph does not support this conclusion, and the legislative history of the same absolutely refutes it.
The provision in paragraph 222 (c), “The term ‘plate glass’, when used in this Act, means glass wholly ground and polished on both surfaces”, if accepted as a literal and all-inclusive definition, would include optical glass or even optical lenses, if they were not provided for elsewhere, and it would be just as plausible, under the decision of the majority, to put them under the plate-glass paragraph as to put the X-ray glass at bar under it.
A reading of the tariff hearings and the testimony in this case conclusively convinces me that when Congress enacted paragraph 222 of the Tariff Act of 1930 for plate glass, and in paragraph 222 (c) set out the so-called “definition” of plate glass, it never had in mind the inclusion of such merchandise as is at bar. From the tariff hearings before the committees of Congress and from the report of the House committee, it is shown that, subsequent to the passage of the Tariff *529Act of 1922, processes other than the old processes of making plate glass were adopted, and that cylinder glass, as well as glass cast on a table, was polished and ground and when so prepared could not be distinguished in commerce from the old form of plate glass. Congress sought to make this new kind of so-called “plate glass” come within the term “plate glass” and take a similar duty because it competed directly therewith and was, no doubt, less costly of production. By the alleged definition it sought to include a less valuable product in the plate-glass paragraph, rather than to bring a more valuable product into it, as is held by the majority in this case.
No one connected with this case has contended that the instant importation was plate glass under the act of 1922, and no one has contended here - that the enactment of the alleged definition was prompted, even in the least, by a desire to bring merchandise like the instant importation within its terms, and in my judgment the report of the House committee fully and conclusively verifies this conclusion. See Hearings before the Committee on Ways and Means, House of Representatives, Tariff Readjustment, 1929, Volume II, page 1531 et seq., and Hearings before a Subcommittee of the Committee on Finance, United States Senate, Tariff Act of 1929, Volume II, page 538 et seq.
From the House committee report on H.R. 2667, which resulted in the Tariff Act of 1930, at page 34 is found the following:
Paragraph 222: Under the Tariff Act of 1922, specific provision was made for cast polished plate glass. Subsequent to the passage of that act, the industry-developed other processes for producing polished plate glass. This product, made by grinding and polishing the surfaces of sheets of glass, is now produced in large quantities by grinding and polishing sheet and cylinder glass as well as glass cast on a table. These various products cannot be distinguished the one from the other after the glass has been ground and polished. In the new bill, all plate glass, by whatever process made, will be dutiable at the same rates of duty, according to the area of the glass.
The meager record in this case discloses that the manufacturers who testified, do not use lead in making the ordinary plate glass of commerce. The ordinary plate glass used requires no lead, and the use to which the importation is put is a use wholly outside of that which was obviously in the minds of the framers of the paragraph involved.
In Summary of Tariff Information, 1929, Volume 1, page 534, is found the following with reference to plate glass:
POLISHED PLATE GLASS
Description and uses. — Cast polished plate glass is composed of practically the same ingredients as other transparent fiat glass, such as ordinary window glass, but owing to the method of its production by casting has greater freedom from structural defects. There are many possible imperfections in cast plate glass, *530obviated by inspection and selection, and several distinct merchantable grades are recognized. The chief distinguishing ■peculiarity of polished plate glass, whether cast or not cast, is that the grinding and polishing (especially the grinding) [lead not mentioned] renders the two surfaces flat and parallel so that there is no distortion of vision when objects are viewed through the glass at an angle. Over 50 percent of the world’s production of polished plate glass is consumed by the automobile industry. The next most important use is for glazing windows in residences, office buildings, and Other structures. Other uses are for mirrors, deck and port lights on ships, for aguariums, and as a protective covering for desk and table tops. (Last italics not quoted.)
An examination of all the glass authorities which I can find shows that the composition of plate glass, as that term is ordinarily understood, never includes lead, and that plate glass is the ordinary glass composed of silica, soda and lime which has been rolled and polished and, in some instances, ground to an even surface.
In Knight’s American Mechanical Dictionary, Volume II, page 1737, under “plate-glass” it is stated:
The ingredients and their proportions, employed in making plate-glass, are kept secret as far as possible by the, manufacturers. The following is given as one of the formulas: Silica, 78 parts; potash, 2; soda, 13; lime, 5; alumina, 2.
This is not a very recent authority, and it is probable that formulae of plate glass are no longer kept secret, but the authorities such as are available all seem to| point to the fact that the ordinary plate glass of commerce never included lead.
In Elements of Glass and Glass Making, by Biser, the following with reference to plate glass is found:
I. PLATE GLASS
Which comprises; rough plate, rolled plate, ribbed plate, and polished plate, having an approximate composition about as follows:
Silica <r ^ 5$
Soda-w to 53
Lime Oi * cn ¡5$
The authority then fists window glass, flint glass and pohshed glass, and 53 per centum lead is found in flint glass.
In the Dictionary of Applied Chemistry by Thorpe (1928), Volume III, page 382, the components of American, German, and French plate glass, as fisted, do not include lead. Lead or lead oxide is included in glass for tableware and glass for other uses, such as electric-light bulbs, etc.
In the Encyclopaedia Britannica, fourteenth edition (1929), Volume 10, page 414, under “Glass Manufacture”, a table, showing the percentage composition of different types of glass, is set out, and plate glass is shown to include silica, iron oxide, alumina, lime and soda, but no lead. Other kinds of glass containing lead are fisted.
*531The majority opinion does not set out the quantity of lead contained in the imported merchandise, but states that it has a yellowish tinge apparently resulting from the quantity of lead used in its manufacture. Appellee’s witness Sobel, vice president of the ap-pellee company, in answer to the question by Government counsel, “Do you not know that there is over 60 percent of lead in Exhibit 1?”, stated, “There may be”, and that “It is supposed to shut out certain rays of light”, and that it might affect its hardness or softness. The record further shows that the imported merchandise sells here for as much as $7 per square foot. Certainly the value of the imported merchandise, on account of the lead contained therein, is several times the value of the ordinary plate glass of commerce. The imported merchandise is not invoiced as plate glass when sold by the importer to consumers here, but is invoiced as “Maltese brand X-ray lead glass. ”
The foregoing considerations bring me to the conclusion that the instant importation under no circumstances could be regarded as plate glass under the old tariff act, and in view of what the House committee stated Congress was trying to do by the alleged definition of plate glass, I am forced to the conclusion that Congress did not intend for X-ray glass, even though ground and polished on both sides, tp be regarded as plate glass for tariff purposes.
If the majority had been confronted with a record in which it was conclusively proved that, commercially and commonly, merchandise like the importation is not plate glass, as I see it this fact would have made no difference in the conclusion arrived at, because if Congress has defined plate glass, that definition must be taken, regardless of the understanding of the trade, and, therefore, proof of commercial designation or proof of the common meaning in aid of the court would not be competent.
I think the importation falls within the provision for “all glass” in paragraph 230. I agree with the conclusion of the court that it is not an article or utensil provided for in paragraph 218. The classification by the collector should have been sustained and appellee’s protests should have been overruled.
Reheaíung allowed January 22, 1934.
On rehearing, judgment was affirmed on March 19, 1934, with the following opinion:
Garrett, Judge: Following the promulgation of our opinion in this case, on November 6, 1933, the Government filed an application for rehearing which was granted. The case was reargued on February 12, 1934, and has been carefully reconsidered, in the light- of this reargument, with the result that we find no reason for departing from the conclusion originally reached.
*532To the end, however, that the meaning of the majority opinion may be clarified, we deem it proper to add thereto that we do not intend the decision to rest solely upon the language of paragraph 222 (c) of the Tariff Act of 1930. It is our opinion that the merchandise is, in fact, plate glass according to the common and usual definitions of that term, and that, as formerly stated, in effect, the legislative history of paragraphs 218 (a), 222 (a), and 230 (d), Tariff Act of 1930, does not evidence any intent on the part of Congress to change the classification which has long been given it for tariff purposes.
For the reasons stated in our former opinion, as herein explained, the judgment of the United States Customs Court is affirmed.
Bland, Judge, dissents for reasons given in his former dissenting opinion.