CONCURRING OPINION
Bland, Judge,specially concurring: I concur in the conclusion reached by the majority, but wish respectfully to dissent from certain language used which, when considered upon its plain meaning, or from the implications which it makes, brings about a result which, I think, is entirely contrary to settled law. I can concur in the result because, after a most careful examination of pertinent authorities, I doubt if it can be said that the particular seed involved has been sufficiently identified as euryalejerox to warrant .the court taking judicial notice of the meaning of the term and the characteristics of the seed of the plant.
The witness, in attempting to identify the plant, pointed to two Chinese characters found at page 40 of the Department of Agriculture bulletin referred to. If he had identified this plant by its Chinese name, it would seem proper for this court to take judicial notice of the English meaning of Chinese names when found in Chinese-English dictionaries, as we would take judicial notice of a French or Italian name. The trial judge no doubt admitted the bulletin for the purpose of ascertaining the Latin or English name of the plant whose name had been given in Chinese and for the purpose of determining the definition and character of the plant whose English name had been so acquired.
*322In considering the question of the effect to be given dictionary definitions, articles by scientists on scientific subjects, reports, bulletins, and so forth, for the purpose of refreshing the court's memory in matters it may take judicial notice of, there is ofttimes confusion between the right to receive the same in evidence and the right of the court to consult them for the purpose of refreshing its memory on matters within the common knowledge. This question was gone into by this court in United States v. Merck & Co., 8 Ct. Cust. Appls. 171, 175, T. D. 37288. We there went thoroughly into the question of what the court may consult in aid of memory and quoted with approval from an opinion of Mr. Justice Gray in Jones v. United States, 137 U. S. 202, 216, in which it was said:
In the ascertainment of any facts of which they are bound to take judicial notice, as in the decision of matters of law which it is their office to know, the judges may refresh their memory and inform their conscience from such sources as they deem most trustworthy. (Gresley Eq. Ev., pt. 3, ch. 1; Fremont v. United States, 17 How. 542, 557; Brown v. Piper, 91 U. S. 37, 42; State v. Wagner, 61 Maine 178.) (Italics ours.)
While it was proper for the court in the case at bar, if the seed of the plant had been identified as the seed of euryaleferox, to have taken the citation of the Department of Agriculture bulletin and consulted it relative to the matters in controversy in this case, it would seem to be the better practice not to admit it as a matter of evidence. The courts, however, have decided that it is not prejudicial error to receive evidence relating to a matter of which they may take judicial notice. 4 C. J. 981, Ham v. State, 156 Ala. 645, 47 S. 126; Whitney v. Jasper Land Co., 119 Ala. 497, 24 S. 259; Wabash R. Co. v. Campbell, 219 Ill. 312, 76 N. E. 346; Chicago, etc., R. Co. v. Neff, 25 Ind. A. 107, 56 N. E. 927; Zarate v. Villareal (Tex. Civ. App.), 155 S. W. 328.
The courts take judicial notice of the reports of the heads of the Federal executive departments. 23 C. J. 102. In Tempel v. United States, 248 U. S. 121, the Supreme Court of the United States, in considering the findings of fact of the lower court, said:
* * * The findings of fact made by the trial court (amplified by the reports of the Secretary of War, of which we take judicial notice) show that the Government claimed at the time of the alleged taking and now claims that it already possessed, when it made its excavation in 1909, the property right actually in question.
In customs jurisprudence, where we are called upon to determine what a thing is, which is often dependent on its use, such as drugs, medicinal preparations, foods, etc., the courts have a right to consult authoritative writings as an aid in such determination. They may do so when nothing but the record and the sample is before them and without any other evidence whatever. See United States v. Davies, Turner & Co., 16 Ct. Cust. Appls. 50, T. D. 42719; United States v. *323Perkins, 1 Ct. Cust. Appls. 323, T. D. 31430; United States v. Arnold & Co., 4 Ct. Cust. Appls. 49, T. D. 33267.
Of course a court sliould not rely upon authorities that are unreliable or which do not carry with them a certain amount of obvious correctness. Their lack of convincing correctness goes to the weight to be-, given to the authority rather than to the question of whether its consideration by the courts is not warranted.
In United States v. Paul G. Downing et al., 16 Ct. Cust. Appls. 556, 561, T. D. 43294 (a classification case), concerning the admissibility of certain statistical statements of the Department of Commerce,, with reference to what certain fancy leathers were chiefly used for in. the United States, this court said:
Error is assigned in the refusal of the trial court to admit in evidence the certain certified statistical statements of the Department of Commerce, hereinbefore referred to. We have examined these records and can find no reversible error in their refusal. While they might have properly been received in evidence and given such consideration as they were entitled to, we can see little or no probative force in them. * * *
The Department of Agriculture bulletin at bar is issued from the office of an experiment station of such department. The Department of Agriculture, under its official seal, gave its approval of the contents of the bulletin by such issuance. It consists of a very exhaustive and able treatment of the subject of some Chinese vegetable food materials, by Walter C. Blasdale, instructor in chemistry, University of California. This authority appears to me to be a sufficiently reputable one to justify the lower court’s consideration of it, if sufficient identifying facts had appeared in the record. It may not have been binding upon the court. The court could have regarded it as of insufficient weight for the determination of the issue, but the court certainly had the right to consult it and give it such weight as it deemed necessary.
In this particular case I have made considerable investigation in the Chinese and Japanese division of the Congressional Library of the matter involved in this controversy, and after doing so I am constrained to agree with that portion of the opinion of the majority which expresses the view that this record does not contain sufficient facts to warrant the conclusion that the seeds referred to by the witness as “cheu shat” in one instance and as “siu sut” in another are the exact seeds to which the bulletin refers by the two Chinese-characters therein used.
I find in Giles’ Chinese-English Dictionary, at page 179, character 1753 (which is a single character) somewhat resembling the- first character used in the bulletin, which is defined as—
A water plant (euryale ferox) allied to the water lily, having round spotted leaves and containing starch * * *. The meal of the seed is made into, a, coarse biscuit. (Italics not quoted.)
*324and that the same character when associated with the last character used in the bulletin is defined as the seed of the above water plant. The last character here referred to in the above authority and in the bulletin means “fruit” or “seed.”
Encyclopiedic Terminology, by Wong Yun-Wu et al., at page 147, defines euryale jerox by the use of two characters, the last of which is identical with the last used in the bulletin at bar and the first of which is somewhat different. There the euryale jerox, whose popular Chinese name is “cock’s head” on account of the shape of the plant, is said to have been cultivated throughout the ages in China and that its seed is used for food, and .that the plant is also extensively cultivated in Japan.
In the Department of Agriculture bulletin at bar, the authority for the characters used and the statement that it is used as “a part of the complex dietary of the Asiatic races” is Bretschneider, Jour. China Branch Roy. Asiatic Soc. 25 (1890), page 218. This authority 'was examined, and the first character used in representing euryale jerox differs slightly from the first character in the bulletin. By consulting Chinese-English dictionaries it is found that the character used in the bulletin does not mean “water lily” but is a broad expression meaning a plant, gorse, hay, and so forth. Thus it will be seen that the particular characters identified by the witness as representing the seeds at bar do not in fact truly represent them and the identification of the English or Latin name of the plant from which the seed is derived is not sufficient to warrant this court saying that the particular seeds at bar are the seeds of the euryale jerox.
Now, if the Chinese-English dictionaries agreed that the particular characters identified by the witness and used by the bulletin meant euryale jerox, then I would have no difficulty in resorting to the numerous authorities in order to determine whether the plant was a drug or a food.
The definition of the word “drug” depends upon its use. United States v. Maine Central Railroad Co., 7 Ct. Cust. Appls. 114, 117, T. D. 36427. In classification cases where the definition of a thing is by reference to its use, the written authorities have been so frequently accepted by the court in determining this question that citations are unnecessary.
I wish, furthermore, to call attention to the inaptness of the two cases cited in the majority opinion, to wit, United States v. G. Hempstead & Son, 153 Fed. 483, and Missouri K. & T. Ry. Co. v. Dale Bros. Land & Cattle Co., 179 S. W. 935. These citations, together with the language used in connection therewith in the majority opinion, may prove quite misleading.
*325In the Hempstead & Son case, a chemist’s report, no doubt prepared for the case, which had been considered by the Board of General Appraisers, was not regarded as competent proof by the circuit court. Of course, a chemist’s report made for the purpose of the trial was not competent, but this is far from saying that a chemical authority may not be consulted for the purpose of determining the meaning of chemical terms or the components of chemical substances.
The Texas case is cited upon the proposition that a United States Department of Agriculture bulletin was held not to be admissible. In that case the bulletin was offered as evidence of a fact concerning how much cattle would lose in weight under certain conditions. The court rejected the bulletin because it did not appear that the cattle upon which the Agricultural Department had experimented were subjected to the same conditions as those involved in the Texas lawsuit. This is far from holding that an Agricultural Department bulletin may not be consulted by a judge for the purpose of refreshing his knowledge about things of which he can* take judicial notice.
In the opinion of the majority are found the following statements:
It does not appear that the author of this bulletin is an officer of, or employed by, the Government, and we think that the letter of transmittal, heretofore quoted, affirmatively shows that it was not issued as a statement of facts by officials of the Government but only purports to give the opinions and conclusions of the author of the bulletin. For this reason, we think that the bulletin has no greater evidentiary value, with respect to the facts stated therein, than if it had been privately published by the author. * * *
* * * * * * *
We can find no statutory law giving any evidentiary value, in protest cases, to statements of fact of which the court can not take judicial notice in a publication of this character, that is, statements made by a private citizen on his own initiative and not at the instance of the Government, and we know of no rule of evidence that permits their introduction for such purpose.
As I see it, these statements are either prompted by an erroneous view of the law or else they are inadvertences. At any rate they are quite misleading. In the first sentence attention is called to the fact that the author of the bulletin is not an' officer of the Government. This would seem to imply that the court could not consult the bulletin because it was not a Government document, but might have done so if it had been a Government document. This is clearly erroneous in view of the decisions. Furthermore, it states that the document, if privately published, would not be admissible. It would seem to follow that the same contention extends to what may be considered by the court. The same argument would apply to the dictionary, or any recognized scientific authority by a single author.
The last quoted sentence states that there is no statutory law nor any rule of evidence which permits the introduction of a document like the bulletin at bar for the purpose of proving a fact of which the *326court could not take judicial notice. The difficulty with this sentence is that it means nothing, in the case at bar, because the court can take judicial notice oí matters which are covered by the bulletin, and the courts have often held that such matters may be considered by the court irrespective of whether they have been introduced for such purpose or not.
For the reasons aforesaid, I concur only in the result of the decision of the majority.