DISSENTING OPINION
Foed, Judge:From the briefs of counsel and the majority opinion, it is clear that the involved merchandise has been considered as having been classified as a lead ore, rather than as a lead-bearing ore. I readily concede that the involved merchandise is not a lead ore. The question is whether or not the involved merchandise is a lead-bearing ore, not whether it is a lead ore. The collector first classified the involved merchandise as “pyrites,” which counsel have agreed is a sulphur ore, and accorded free entry to such merchandise under paragraph 1777 of the Tariff Act of 1930. Thereafter, the collector found that the “pyrites” or sulphur ore contained a certain amount of lead, and he thereupon levied duty at the rate of three-fourths of 1 cent per pound upon the lead contained therein under the provisions of paragraph 391 of said act, treating the “pyrites” or sulphur ore as a lead-bearing ore.
All the dictionary definitions and other authorities quoted by the majority are devoted entirely to defining “ore.” With the definition of ore, as given in those authorities, I am in accord. I am unable to see how the definitions of an “ore” would give any indication of what constitutes a lead-bearing ore. No duty was levied upon any ore in this case. Duty was levied only upon the lead contained in a lead-bearing ore. Since the Congress has used both the terms, “ore” and “lead-bearing ore,” this would appear to constitute a clear congressional distinction between the two terms. Therefore, definitions of what constitutes an “ore” would give no indication of what constitutes a “lead-bearing ore.”
*64Paragraph. 181 of the Tariff Act of 1897 provided in part as follows:
181. Lead-bearing ore of all kinds, one and one-half cents per pound on the lead contained therein: * * *.
So far as here pertinent, the above-quoted paragraph and paragraph 391, here under consideration, are practically identical. Cockerill Zinc Co. v. United States, 13 Treas. Dec. 125, T. D. 27891, decided February 5, 1907, involved the proper classification of certain, zinc ores. In deciding that case, the United States Board of General Appraisers concluded as follows:
Our conclusion is that the carbonates and silicates of zinc are included -within the meaning of the term calamine as used in paragraph 514, and that they are free of duty under said paragraph and also under paragraph 614, and that the sulphide of zinc is free under the paragraph last named as crude minerals, etc., subject, however, to the qualification that when lead is found in these ores duty shall be taken on the amount of lead contained therein as described in paragraph 181.
While the above decision did not in precise words define “lead-bearing ore” as an ore which contained lead, nevertheless, such a holding is implicit in the quotation, supra, “that when lead is found in these ores duty shall be taken on the amount of lead contained therein.” Thus, the Congress has been advised since 1907 that lead-bearing ores are ores which contain lead. This is significant in view of the language contained in paragraph 391 of the Tariff Act of 1930 as follows :
Lead-bearing ores, flue dust, and mattes of all kinds, l}i cents per pound on the lead contained therein; Provided, That such duty shall not be applied to the lead contained in copper, gold, or silver ores, or copper mattes, unless actually recovered: * * *.
I am not able to place any construction upon the foregoing proviso except that when the Congress exempted from the duty of 1}( cents per pound the lead contained in “copper, gold, or silver ores, or copper mattes/-’ it thereby expressed in clear terms its intention to make the duty of 1% cents per pound apply to the lead contained in all other lead-bearing ores, whether or not recovered or recoverable. The above views find confirmation in the case of United States v. Brewster, decision by Burns, district judge for Texas, reported as T. D. 29006. As stated by the court, “The importations involved in the several protests consist of zinc ore * * * .” A more detailed description of the merchandise was given in the decision of this case in the Circuit Court of Appeals, Fifth Circuit, 167 Fed. 122, as follows:
The imported ores, broadly described, were: (a) Concentrated sulphides containing 28 per cent, zinc and 2 per cent. lead, (b) Carbonates crushed and handpicked, containing 28 per cent, zinc and 7 per cent. lead, (c) Carbonates and silicates combined, crushed and hand-picked (21 to 35 per cent, carbonate, 2 to 26 per cent, silicate), in some less than 1 per cent, of lead, and in others no lead.
*65In disposing of the case, Burns, district judge, said:
In so far as the specific duty is concerned the question presents no difficulty; the language clearly and specifically provides that the lead contents shall be subject to duty at the rate assessed by the collector.
In affirming the decision of the Circuit Court, the Circuit Court of Appeals, Fifth Circuit, said:
PER CURIAM. Under the facts in this case it is not necessary to decide whether the provision for lead-bearing ores in paragraph 181, Tariff Act July 24, 1897, * * * is exclusive. On the merits the Board of General Appraisers and the Circuit Court ruled correctly.
The judgment of the Circuit Court is affirmed.
The provision for lead-bearing ores, construed in the above decisions, was as follows:
Lead-bearing ore of all kinds, one and one-half cents per pound on the lead contained therein: * * * .
Since lead-bearing ore was the only kind of ore made dutiable on the lead content, or the lead contained therein, under paragraph 181, supra, the court could not have held dutiable the lead contained therein, without an affirmative holding that zinc ore containing less than 1 percent of lead was a lead-bearing ore. It is my view, therefore, that the above authorities require a holding that the lead contained in the instant sulphur ore should be held dutiable at three-fourths of 1 cent per pound, as lead-bearing ore, as classified by the collector.
In the cases alluded to above, the courts have held a zinc ore containing less than 1 percent of lead to be a lead-bearing ore.
The following from the New International Encyclopaedia, volume 13, page 665, makes it clear that there is also a lead ore:
Metallurgy. Numerous minerals contain lead, but only three occur in sufficient quantities to constitute lead ores, viz., the sulphide, galena, PbS (Pb, 86.6 per cent); the carbonate, cerussite, PbCC>3 (Pb, 77.5 per cent); and the sulphate, anglesite, PbSCL (Pb, 68.3 per cent).. Galena, the most important of these ores, is classed as argentiferous or nonargentiferous, depending upon the amount of silver present. The nonargentiferous lead ores of the United States occur chiefly in the Mississippi valley, which contributes more than one-third of the total amount of lead produced from domestic ores. Since the beginning of the present century, however, it has been found profitable to desilverize some of the lead produced from ores which were formerly classed as nonargentiferous. In recent years at least one-half of the silver and one-tenth of the gold annually produced in the United States have been obtained from lead smelting, either by the treatment of lead ores alone, or by adding silver and gold ores to the charge in the lead furnace, the reduced metallic lead serving to collect the precious metals.
The “Pb” in the above quotation stands for “lead,” and it is readily understandable that an ore containing from 68.3 to 86.6 percent lead would be profitable to mine and work for the lead contained therein. This would necessarily make such an ore a lead ore under the definitions of an ore, quoted by the majority. I wish to again emphasize *66the fact that we are not here dealing with a lead ore, but with a lead-bearing ore.
In the case of American Smelting & Refining Co. v. United States, 13 Ct. Cust. Appls. 507, T. D. 41391, the merchandise involved consisted of irrecoverable zinc in lead ore. In disposing of that case, the Court of Customs Appeals said:
There is nothing in the language or circumstances surrounding the passage and approval of the Tariff Act of 1922 that leads us to the conclusion that metals lost in the smelting and refining processes in bonded smelters were to be admitted free. It is true that a reasonable allowance must be made by the Secretary of the Treasury for wastage. It is also true that if the zinc content is less than 10 per centum, it is not dutiable. If Congress had intended to make a change in this respect it might easily have done so with few words. General Appraiser Fischer very aptly points out, in the opinion of the court below, that in paragraph 392, the paragraph imposing duties upon lead bearing ores and mattes, this significant exception is made, which did not appear in the equivalent paragraph in the tariff act of October 3, 1913:
Provided, That such duty shall not be applied to the lead contained in copper mattes unless actually recovered.
Counsel for appellant suggest here that they presented fully their viewpoint to the congressional committees framing this act. Is it not strange that if Congress had intended to exempt zinc in lead ores from duties, it did not use fit language to accomplish that purpose such as it used relative to copper mattes?
Appellant also insists that the zinc in question was not imported, within the meaning of our customs laws, and cites Marriott v. Bruñe, 9 How. 619, and other cases, in support of his contention. The cases cited, in each instance, go off upon the principle that merchandise, to be dutiable, must actually arrive in the country; that if it is lost on the voyage, or for other reason is not imported, it is not dutiable. This is conceded law. But no such principle applies here. There can be no controversy that the zinc contained in the imported ores came within the customs jurisdiction of the country. United States v. Shallus, 2 Ct. Oust. Appls. 332. It was therefore imported, unless some contrary provision of law prevents such construction. We know of no such provision and must therefore hold the zinc in question was imported.
* * * Retaining the recoverable product of his operations, he seeks the destruction of the irrecoverable residue and the cancellation, thereby, of a part of his bonded obligation. We believe that to so hold would be to accomplish by indirection what we have said, herein, we can not do by direction.
The holding in the case of Consolidated Kansas City Smelting & Refining Co. v. United States, 1 Ct. Cust. Appls. 472, T. D. 31509, is to the same effect as the decision in the American Smelting & Refining Co. case, supra, the gist of the decision being succinctly stated in the second paragraph of the syllabus, as follows:
2. Lead-Beabing and Zinc-Beabing Obes.
A commodity, it is true, is properly assessable in its condition as imported, but where ore, as here, is shown to have contained, as imported, both lead and zinc, the zinc appearing in a quantity exceeding 10 per cent, the metal content in both is dutiable, the lead under paragraph 181, the zinc under paragraph 193, tariff act of 1909.
*67It is my view that the question of what constitutes a “lead-bearing ore” is a matter of law to be decided by the court. While opinion testimony of experts as to what constitutes a “lead-bearing ore” may be accepted as an aid to the understanding of the court, such testimony is not in any sense binding upon the court. Therefore, the fact that all of plaintiff’s witnesses testified that the involved merchandise was not “a lead-bearing ore” is of little, if any, assistance in determining the question here presented.
In view of the fact that it was held in the Brewster case, swpra, that an ore containing less than 1 percent of lead was a lead-bearing ore, and in view of the further fact that, since the Brewster decision, the Congress has reenacted the paragraph there construed in each succeeding tariff act in practically identical language, this appears to be a strong case for the application of the rule of legislative approval of judicial construction.
In each of the “lead-hearing ore” paragraphs since the Tariff Act of 1897, the Congress appears to have made it clear that it intended to levy duty upon any and all lead-contained in lead-bearing ores. This, in my opinion, precludes the application of the rule of de minimis non curat lex, invoiced by the majority herein. I would, therefore, hold the pyrites, or sulphur ore herein, to be a lead-bearing ore, and the lead contained therein to be dutiable as assessed by the collector.