Dissenting: I am in disagreement with the decision of the majority and I think the result reached is not only anomalous, but is arrived at by reasoning which I respectfully insist is unsound.
Paragraph 730 of the Tariff Act of 1930 is a very comprehensive one and was obviously intended to include almost every kind of imported animal feeds at a low rate of duty. Most of the articles contained *44therein 'which have to do with grain or grain products were given a 10 per centum ad valorem duty. I separate paragraph 730 into eight provisions, and italicize the two with which we are here concerned:
1. Bran,. [10 per centum]
2. shorts [10 per centum]
3. by-product feeds obtained in milling wheat or other cereals, 10 per centum ad valorem;
4. hulls of oats, barley, buckwheat, or other' grains, ground or unground, 10 cents per one hundred pounds;
5. dried beet pulp, malt sprouts, and brewers’ grains, $5 per ton;
6. soy bean oil cake and soy bean oil-cake meal, three-tenths of 1 cent per pound;
7. all other vegetable oil cake and oil-cake meal, not specially provided for, three-tenths of 1 cent per pound;
8. mixed feeds, consisting of an admixture of grains or grain products with oil cake, oil-cake meal, molasses', or other feedstuffs, 10 per centum ad valorem.
In holding that the importer’s protest claim that the merchandise was dutiable under clause 3 as a by-product feed obtained in milling oats was without merit, and after reciting considerable somewhat immaterial legislative history, the majority says:
In view of the fact that the Congress has provided in paragraph 730, supra, for “by-product feeds obtained in milling wheat or other cereals” at one rate of duty and for “hulls of oats, * * * ground or unground,” at another rate of duty, and as the involved merchandise is not obtained in the milling of oats, but, on the contrary, is prepared by mixing a by-product feed obtained in milling oats with another tariff entity — oat hulls — in the proportions hereinbefore stated and grinding the mixture, we are of opinion that the involved “Vim Oat Mill Feed” is not a "by-product” feed “obtained in milling” oats within the purview of paragraph 730, supra, but, on the contrary, is, on the record here presented, a non-enumerated manufactured article. [Italics ours.] * * *
As I understand the above holding, its gist is to the effect that the imported merchandise is not a by-product feed obtained in milling oats, for the reason that it is a mixture of two by-products which are separately obtained in milling oats, although both products come from the same continuous process of milling the oats. Obviously, if the two byproducts had come out together, the holding of the majority would have been different. In my judgment, the imported feed is a by-product feed obtained from milling oats.
However, if it could be held upon good authority that the language employed by Congress in the enactment of paragraph 730, or language elsewhere in the act, does not cover the involved merchandise, it seems to me that the mandatory provision of the so-called similitude paragraph 1559 should be given application here.
While it has not been urged here by the importer, for reasons which are obvious, that the similitude provision should be resorted to, it certainly cannot be logically questioned but that it is our right and duty to consider the question. It is the settled rule of this court and the Supreme Court of the United States that the similitude *45provision of the statute, which mentions no rate of duty, does not have to be pleaded in the protest. Rice & Co. et al. v. United States, 10 Ct. Cust. Appls. 165, T. D. 38403; United States v. Post Fish Co., 13 Ct. Cust. Appls. 155, T. D. 41022; United States v. M. Rice & Co. et al., 257 U. S. 536; and that it is the duty of every customs, “judicial,” and administrative officer in construing a paragraph like the one involved — 730—to apply the similitude provision as it would any other rule of construction. A' thing that has the .force of a rule of construction and which does not require pleading, cannot bo waived or abandoned so as to warrant the failure of “judicial interpreters” giving it proper consideration.
In Rice & Co. et al. v. United States, supra, this court, after holding that it was not necessary to claim under the similitude paragraph, said:
When it is borne in mind that the similitude clause is in effect a part of and must be read in conjunction with every duty-levying provision of the act and that, as such, its single enactment makes for economy and simplicity of expression, so known to all, and that it levies no other rate or rates of duty than that expressed in the particular provisions of which it is in effect a constituent part, in this respect it differs not at all in principle from the one general levy of the rate or rates of duties prescribed in each paragraph of the act by the defining and limiting language of the enacting clause of the act, to wit:
If the rates prescribed by each paragraph are actually levied by one general provision of the act, why should not the uniform amplitude of each and every paragraph as prescribed by Congress be expressed by a single paragraph? In fact, paragraph 386 [the similitude paragraph] is not a duty-levying provision. It neither prescribes nor levies a single rate of duty. But it is a legislative rule of interpretation of the scope of every duty-assessing provision of the act. It is a legislative mandate upon all collectors of customs and the administrative and judicial interpreters of the act as to the inclusiveness of each and every such paragraph and the consequently relative evidence in the application thereof. As such, it should not more be pleaded than any other rule of interpretation, construction, or evidence. [Italics mine.]'
The majority opinion in the instant case in holding that the similitude claim will be treated as having been abandoned, is based primarily upon the consideration that the question was not presented to the court below or to this court. The majority also set out the fact that the protest claim in the instant case is on a printed form, and reference to the form of the protest is italicized in the latter part of the opinion. There certainly is no authority for holding that a pleading, good in other respects, is bad because the matter is on a printed form. But, as I view it, this is beside the question. It is not necessary to plead it at all.
It is my understanding that the present holding that the similitude provision need not be considered reverses, though not expressly, the holding in the above-cited case of Rice & Co. et al. v. United States, that the similitude paragraph is a mandate to “judicial interpreters.” *46The majority have the right to reverse or ignore former decisions of this court, but it is not often that a decision of this court which has been sweepingly affirmed by the Supreme Court of the United States has been reversed or ignored.
When the case of Rice & Co. et al. v. United States, supra, which held that the similitude provision was a legislative mandate to “judicial interpreters,” reached the Supreme Court of the United States— United States v. M. Rice & Co. et al., supra — the decision of this court was, in an opinion by Chief Justice Taft, sweepingly affirmed not only in its conclusion as to the lack of necessity of pleading the similitude paragraph, but it was affirmed in its reasons arriving at that conclusion. The holding of this court that the similitude paragraph was a rule of construction (rules of construction cannot be waived) was not obiter dictum. It was the basic reason for holding that the paragraph need not be pleaded in the protest. Furthermore, if it were obiter dictum the Supreme Court indulged the same obiter dictum in holding the paragraph to be “a rule of construction.” After reciting the importance of the question and the conflicting decisions involved in one phase of the same, the Supreme Court said:
The part of paragraph 386 under consideration [the similitude provision] prescribes a rule of construction applicable to every paragraph of the tariff, imposing duty on specifically described articles. It is a general provision intended to enlarge the scope of each paragraph to include articles not specifically described but resembling articles specified. The collector must be taken to be familiar with the general provisions of the tariff act. When an importer specifies in his protest a paragraph under which he claims his importation should be classified, the collector should enquire not only whether the article comes within the paragraph named, but also whether it so resembles the articles specifically described therein as to require it to be classified thereunder. After satisfying himself that the article does not come within the specific description of the named paragraph, its resemblance to articles which do should be his “first inquiry.” [Italics mine.]
The quoted words of paragraph 386 mention no specific rate. Any reference to them in a protest would be meaningless unless accompanied by mention of some taxing paragraph. It is the latter which taxes the article under the general rule of interpretation which these words furnish.
It is said thereby that resemblance is a question of fact, but it is one not very different from that involved in the classification of articles within the specific description of the paragraph. The object of the protest is to put the collector on inquiry not alone as to the law but also as to the facts which make the law applicable. The reasoning of the Court of Customs Appeals meets our approval and the judgment is Affirmed. [Italics except last word mine.]
The so-called similitude paragraph is mandatory and was designed to take care of such a situation as the majority thinks the instant issue presents with respect to paragraph 730. The mandate of paragraph 1559 is:
That each and every imported article, not enumerated in this Act, which is similar, either in material, quality, texture, or the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject *47to the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned; * * *
As before stated, the reason given by the majority for excluding the instant merchandise from the “by-product” feed provision is that it is a mixture of two by-products, one of which is separately provided for at a rate of duty different from that of mixed feeds or by-product feeds. If they had come out of the milling operation together without requiring that they be mixed, obviously there would be either an identity of material, texture, and quality, or a very great similarity. Certainly the use would be the same. The similarity of uses might depend somewhat on the percentages of the mixture, which in some instances might suggest the use of the by-product as an ingredient for making a mixed feed. The record in this case, however, shows that the by-product mixture imported may be and is advantageously used by itself as a stock feed. Horses have lived on it alone for 5 years. That is as much as you can say for certain well-known stock feeds raised on and fed directly from the farm. The fact that something else is sometimes also fed or sometimes used to make a balanced ration does not militate against the instant material being a “feed.”
Indubitably, the circumstances of this case suggest that it is the duty of the court to consider the similitude provision of paragraph 1559, supra. The case of C. J. Tower & Sons v. United States, 25 C. C. P. A. (Customs) 408, T. D. 49486, although a case in which we declined to apply the similitude doctrine, supports the position that it should be applied in the case at bar. There, the imported merchandise consisted chiefly of oats “which contained too many foreign ingredients to be manufactured into human food.” Before being manufactured the importation “contained a certain amount of barley, buckwheat, wheat, ‘wheat seeds,’ 'straw, thistle tops’ and dirt” which were all ground up together. This is not the kind of material we have at bar.
There are two requisites prior to the application of the similitude rule: First, the statute expressly provides that it only applies to non-enumerated goods; second, the proof should show that the imported goods are similar in material, texture, quality or use to those which are provided for. The proof is abundant in this case to show that the importations at bar, are, if not identical, similar in all four respects required by the statute to goods which are specifically provided for in paragraph 730. No proof is required to show the characteristics of the goods with which we should compare the imported merchandise. The importer does not have to prove the characteristics of goods which are enumerated. This would be proving dutiable classification under the paragraph of merchandise not involved. The court is presumed to know the nature of goods intended to be directly included within the paragraph. The court may take judicial knowledge of the *48inherent characteristics and. uses of so common a material as byproducts obtained from milling oats. United States v. Post Fish Co., supra. It is commonly understood that by-product feeds produced by milling grains may include such substances as bran, kernels, broken bits, fuzz, hulls and the like, all ground up together. And their characteristics are not radically changed by the fact that they are not mixed in one milling operation.
It should be noticed that in the Tower & Sons case, supra, we called attention to the fact that Congress has evidenced an intention of providing a very low rate of duty upon most stock and poultry feeds. To hold that this is a nonenumerated manufactured article, dutiable at 20 per centum ad valorem, is, in my judgment, to double the duty intended by Congress, without adequate justification for such action.
It seerns to me that the holding of the majority that the involved merchandise is not dutiable under paragraph 730 is a far-reaching one. It has not been disputed that under this holding no mixed cereal feed which has been obtained by separately milling the cereal ingredients can come within this provision. It is a matter of common knowledge, referred to in the Summary of Tariff Information, and elaborated upon in various stock feed publications, some of which importer cites, that there are numerous mixed cereal feeds such as mixtures of bran, cracked com, and other ground or cracked cereals or portions of the same, which are used in enormous quantities daily in the feeding of stock and poultry. Is it possible that Congress in attempting to provide a low rate of duty upon stock feeds, in such a comprehensive paragraph as 730, has wholly overlooked this most important class of feed?