DISSENTING OPINION.
Smith, Judge:I am sorry that I can not concur in the prevailing opinion.
At the’ hearing before the Board of General Appraisers the protestants submitted for the consideration of the board three groups of samples representative of the clays imported. The first group was made up of four exhibits, three of which represented raw clays of a dark-gray color and one of which was a raw clay which had been burned and was almost a creamy white.
The second group contained 14 exhibits of a raw clay ranging in color from a dark gray to a gray that was almost white.
The third group was composed of 13 'exhibits, which were almost white in color and which represented clays which had been burned.
The samples of raw clay not only varied in color, but, according to the testimony, differed somewhat in properties.
C. H. Kerr, director of the research laboratory of the Pittsburgh Plate Glass Co., testified for the importers that all of the clays represented by the several exhibits were fire clays produced in the Province of Namur, Belgium, and that they possessed all the chemical and geological characteristics of Gross-Almerode clay, a clay deriving its name from a town in Germany near which the clay was mined. He said that the term “blue” had no significance whatever in the trade and that therefore he could not describe Gross-Almerode clay as a common blue clay.
He said the clays in controversy were glass-pot clays and that he knew of no clays suitable for the making of crucibles or glass melting pots.or tank blocks which had a more bluish tinge than the samples which he had produced.
*338The witness stated that the glass-pot clay most widely known in the United States was tbe St. Lonis clay, which, had a typical gray and not a blue color, and that other clays of this country used to a less extent than the St. Louis clay for glass-pot purposes were all substantially without .the bluish color.
He ascribed the blue in clays to the carbonaceous matter contained therein and said that the color'had no practical bearing on the use of such clays, inasmuch as it disappears when submitted to a temperature far below that to which crucibles and glass pots are exposed.
He declared that you could not tell a clay by its appearance. Pie said clays alike in appearance might in fact be very dissimilar in properties and that clays approximately of the same composition might appear to be very dissimilar.
In his opinion any clay was suitable for making glass pots which would neither fuse at a temperature below 2600° F. nor crack when exposed to great heat and which, made into a pot, would not, on account of iron, magnesia, or alkali contained in it, discolor the melted glass or yield to the dissolving action of that class of molten material.
He said there were many clays which did not meet those requirements, although clays which might be suitable were, widely distributed, geologically speaking.
Hie witness stated that he would find it extremely difficult to distinguish between Gross-Almerode clay and the imported clays under consideration, inasmuch as the Gross-Almerode deposit contained clays of the same range, type, and appearance as those mined in the vicinity of Namur, Belgium. So far as suitability for the making of glass pots was concerned, he said he could not distinguish one clay from the other.
II. M. Hoffman, purchasing agent for the Pittsburgh Plate Glass Col,, and a witness for the protestants, testified that the samples submitted to the board were common pot clay and that in a commercial sense there was no such term as “common Hue clay.”
He asserted that no clays in use for the making of crucibles and glass melting pots had any bluer tinge than the samples.
H. B. Staley, Government examiner of merchandise at Philadelphia, testified for the importers that a clay, not an official sample, submitted to him was a Common blue clay and was classified as such under the tariff acts of 1909 and 1913. The clay to which he referred was marked as “Illustrative Exhibit A” for identification, but was not introduced in evidence, and apparently can not now be found.
Henry A. Munger, importer of clays, testified, among other things, that there were certain clays in his business which were recognized as common blue clays. Under objection that the proper foundation *339bad not been laid, be stated tbat Exhibits 1 and 2 were common bine clays. Subsequently be said tbat none of tbe clays were bluisb and tbat be bad never seen any clays wbicb be tbougbt were blue. He asserted tbat “ blue ” was “ a trade designation, a general generic term in contradistinction to clays generally less valuable, of a white or pale-yellow color.” Later on tbe witness declared tbat tbe term “common blue clay” was not used in tbe trade.' Wben asked wbat must be present in order tbat a clay might be classified as a blue clay, be repbed tbat “it has those quabties wbicb enables it to be used to advantage in tbe making of crucibles and glass pots and similar purposes, and wbat they are can be determined only by actual use.” He afterwards amphfied that answer by saying tbat be “could make an answer tbat would be right most of tbe time as to whether there were blue clays by a physical inspection, but it would have to be further substantiated by actual tests.” He tbougbt that Exhibits 1 and 2 were common blue clay, but be could not be sure without confirming bis judgment by laboratory or practical tests. He said tbat some common blue clays could be identi-fled "by making them into crucibles or glass pots, and that tbe color of a common blue clay was anything from a bgbt drab to a black or very dark brown.
Tbat testimony establishes definitely and positively that there is such a thing as common blue clay, and tbat such a clay is imported and so classified by customhouses. There is no evidence in tbe record tbat tbe importation is “common blue clay.” Its claim to tbat designation begins and ends with tbe assertion tbat it has “a bluisb tinge,” coupled with tbe statement of one of tbe witnesses tbat they know of no clay suitable for tbe making of glass pots which has “any more bluisb tinge.” Tbe goods themselves appear to be gray, not blue, and tbat they are gray, not blue, seems to be borne out by tbe testimony wbicb ascribes tbe “bluisb tinge” to the presence of. carbonaceous matter, pigmentation by wbicb is usually black, not blue, and black mixed with white, tbe color to wbicb the clay bums, produces gray; One of tbe importers’ witnesses' did testify tbat in color and tbe greasy, plastic appearance of their surface, some of tbe clays under consideration resembled tbe common blue clay passed by tbe customhouse under tbe tariff acts of 1909 and 1913. Tbat similarity, however, can not be accepted as proving tbat tbe importation is common blue clay, first, because a greasy, plastic surface was not shown to be peculiar to common blue clay, and, second, because tbe evidence positively establishes tbat color is of no value whatever in determining the identity or nature of clays.
.Wbat are tbe components and characteristics of common blue clay and whether there are glass-pot blue clays which are not common blue clays, can scarcely be said to be within tbe judicial knowl*340edge, and consequently in the absence of evidence to that effect we can not say that all glass-pot blue clays, if any such, there be, are common blue clays. Indeed, if we hold that the importation is a common blue clay, because the witnesses say that it is blue and is used for making glass pots, then we must hold that Gross-Almerode lay is also a common blue clay, inasmuch as the testimony definitely shows that Gross-Almerode clay, so much resembles in composition and appearance the clays here involved that looking at them one could not be distinguished from the other. That holding, however,, can not well be made, not only because one of the witnesses testified that he could not describe Gross-Almerode clay as common blue clay, but because Congress itself saw fit to separately provide for common blue clay and for Gross-Almerode clay and presumably therefore Congress regarded them as different, not the same kinds of clay. And if Gross-Almerode clay is not common blue clay neither is the importation, since it is shown to be of the same color, composition, and appearance as Gross-Almerode clay and practically the very same clay.
Moreover, the clays in question are, according to the evidence, suitable for the manufacture of glass pots and the history of the legislation, we think, fully justifies grave doubt as to whether the common blue clays which Congress had in mind were fit for that use. The tariff acts of 1890, 1894, and 1897 contained a free-list provision for “common blue clays in cásks suitable for the manufacture of crucibles.” That provision was amended by paragraph 534 of the act of 1909, so as to read “common blue clay and Gross-Almerode clay in cases or casks' suitable for the manufacture of crucibles and glass melting pots or tank Mocks” and the amendment thus accomplished was proposed for the express purpose of putting clay for the manufacture of glass on the same footing with that used in crucibles for the manufacture of iron and steel. (Cong. Rec., 61st Cong., 1st sess., July 5 to July 16, 1909, p. 4396.)
Considering that common blue clay suitable for the manufacture of crucibles had been on the free fist for 19 years prior to the amendment and that Congress must have known the use to which such a clay was devoted, it can hardly be assumed that the amendment would have been allowed to pass unquestioned if common blue clay was suitable for the manufacture of tank blocks or that kind of crucible which is known as a glass pot.
But however that may be, the record shows that a sample of clay submitted to H.- B. Staley, a customs examiner of merchandise and a witness for the importers, was identified by him as common blue clay. Compared analyses of that sample and of the official samples would have definitely determined whether the importation was or was not a common blue clay.
*341The importers failed to introduce the illustrative exhibit and failed to submit any analysis of common blue clay or of the commodity imported. With the proven fact before them that blue clays might be radically different and no proof whatever that blue clays fit for glass pots were common blue clays they chose to rest their case on the statement that the merchandise in' question was of a bluish color and suitable for making glass pots, a statement contradicted as to color by at least one of the witnesses, by the goods themselves, and apparently by the color of the matter to which the “bluish tinge” is attributed.
The Pittsburgh Plate Glass Co., for which this importation was made,'has ample facilities for determining the nature and composition of the materials-which it uses and if we do not indulge in the presumption that material evidence which might have been and was not produced by them, was adverse, we must at least decline to accept as proof of their contentions weak and inclusive evidence when stronger and more satisfactory evidence was available.
I therefore conclude that it has not been shown that' the clays in controversy are common blue clays. The substance in issue is not from Gross-Almerode, Germany, but from Namur, Belgium, and is therefore not Gross-Almerode clay, although evidently of that type.
Congress having elected to free list common blue clay and Gross-Almerode clay and no other clays suitable for the manufacture of crucibles and glass pots or tank blocks and the evidence being insufficient to show that the materials imported are in fact common blue clay or Gross-Almerode clay, or known to the trade as such, I am of -the opinion that the merchandise was properly assessed and that the decision of the Board of General Appraisers should be affirmed, not reversed.