DISSENTING OPINION
Oliver, Chief Judge:I regretfully dissent from the decision herein of my associates.
The “digitalis lanata” involved herein meets all of the statutory requirements of a drug. It is an uncompounded substance of vegetable origin, containing no alcohol, not edible, and “having therapeutic or medicinal properties and chiefly used for medicinal purposes,” paragraph 34 of the Tariff Act of 1930. While this “digitalis lanata” is a drug, within the tariff definition of the term, it is not ipso facto classifiable either under paragraph 34, covering advanced drugs, or paragraph 1669, relating to crude drugs, because those *168paragraphs include only such drugs as are “not specially provided for.” In other words, the commodity in question is classifiable under a residuary provision for “drugs” (either paragraph 34 or paragraph 1669), only if it is not more specifically provided for under the general provision for “digitalis” in paragraph 36 of the Tariff Act of 1930, where it appears without words of description or limitation.
The record herein, coupled with the definitions cited in the majority opinion, shows that digitalis is a drug, as that term has been legislatively defined in paragraph 34, supra. Digitalis is a plant genus that possesses therapeutic qualities and is chiefly, if not exclusively, used for medicinal purposes. Two of the species, i. e., “purpurea” and “lanata,” form the basis for the present controversy. The evidence herein is positive to the effect that the particular identifying name for each of the species is indicative of the relative strength of the peculiar glycoside that imparts the therapeutic properties in each. “Digitalis lanata,” the substance in question, is exclusively used in a finished product, marketed under the trade name, “digoxin.” “Digitalis purpurea,” the species upon which plaintiff’s theory of the present case is based, is used in a finished product, known as “digitoxin,” and, also, is prescribed per se, according to dosage and in a form, either “whole leaf,” “powder,” or “tincture,” directed by physicians. Neither the variance in the manner of uses, nor the relative potency of the .two species, is a material factor herein. The all-important condition is that both are “drugs,” within the tariff understanding of the term.
Since the competing provisions under the present issue involve drugs — digitalis in paragraph 36, as assessed, and drugs, not specially provided for, paragraph 34 or 1669, as claimed — the element of “use” is the controlling principle. United States v. Wm. Cooper & Nephews, Inc., 22 C. C. P. A. 31, T. D. 47038. This predominance of the rule of “use” herein renders distinguishable from the present issue the case of Nylos Trading Co. v. United States, 21 Cust. Ct. 86, C. D. 1133, affirmed in Same v. Same, 37 C. C. P. A. 71, C. A. D. 422, which the majority follows to support its decision. That case related to so-called “pataua oil,” a vegetable oil obtained from fleshy part of the fruit of the palm “Oenocarpus bataua,” which the collector classified under the general provision for “expressed or extracted oils, not specially provided for.” The importer sought classification under the provision for palm oil. The case turned on the principle of commercial designation, which was discussed by the appellate court as follows (p. 81):
* * * The real question is whether as imported the oil from the Oenocarpus bataua palm has a commercial designation distinct from that given an article “palm oil” falling under a different classification; or whether there is a com*169mercial distinction between them which brings the oil at bar within the terms of the paragraph where it is assessed. Cf. Seward v. United States, 9 Ct. Cust. Appls. 4, 9, T. D. 37842; see Draeger Shipping Co. et al. v. United States, 15 Ct. Cust. Appls. 454, 459, T. D. 42644. Appellant has not proved that the oil of the palm Oenocarpus batana moves at all in commerce under the term “palm oil.” The testimony of appellant’s own witness tends to show that the oil at bar moves in commerce as “pataua oil,” not as “palm oil,” and the invoice supports such a conclusion. Even if the government’s burden of proving the commercial meaning alleged for “palm oil” were not adequately met, appellant has not shown that the oil at bar is bought and sold under the tariff term. There is ample evidence that the merchandise at bar is not bought and sold under the term “palm oil.” The evidence also establishes that a delivery of the merchandise at bar would not be considered as filling an order expressed in the term of the tariff act. Those facts support the trial court’s decision under the rule of Meyer and Lange et al. v. United States, supra.
The importance of the foregoing quotation lies in the observation that the principle of “use,” controlling herein, was not a consideration in the cited case. A classification by use prevails over a general classification or even an eo nomine designation, in the absence of a clear congressional intent to the contrary, Julius Forstmann & Co. v. United States, 28 C. C. P. A. 222 (p. 227), C. A. D. 149.
In the case of Nootka Packing Co. et al. v. United States, 22 C. C. P. A. 464, T. D. 47464, it was held that “an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article.” This principle of tariff construction applies herein. The Nootka Packing Go. et al. case, supra, was concerned with the classification of clams that had been cut into pieces, cleaned, cooked, and then packed in the cans filled with a brine, partly salt and partly fresh water, for seasoning and delivery. In reaching its conclusion, the court said:
* * * Paragraph 721 (b) of the Tariff Act of 1930 provides for “Clams, clam juice, or either in combination with other substances, packed in air-tight con.tainers.” It will be observed that this language is not restricted to clams in their raw or natural state, nor is it restricted to entire clams. It includes any clams in any condition, so long as they are clams.
The same reasoning can be invoked with equal force in the present case. Here, our consideration is directed to the provision for “digitalis,” a tariff designation without modification of any kind. It is a drug, within the tariff definition of the term (paragraph 34, supra), and, as such, it is not restricted to any individual species of the genus plant. In other words, as a drug, classification thereunder is controlled by the element of “use,” and as an eo nomine designation, it is all embrasive, contemplating all species of digitalis, without regard to their form. Thus, the “digitalis lanata” in question is *170properly classifiable as digitalis under paragraph 36, as assessed by the collector.
This consistent tariff treatment of all species of digitalis lends support to the congressional intent for uniform classification of drugs. The statutory definition of a “drug” was originally enacted in paragraph 34 of the Tariff Act of 1922. Explanation for this legislation appears in the Summary of Tariff Information, 1921, prepared by the Tariff Commission for the information of the Committee on Finance of the Senate, as follows (pp. 90-91):
Botanical Drugs.
(See Survey A — 7.)
Production. — The drugs listed under this paragraph and under paragraph 1562 of the free list are extremely numerous and for the most part are of strictly foreign production. Most of those produced domestically are not grown elsewhere. * * * The quality of American drugs excels that of imported products, because of scientific research and methods of cultivation. Among such domestic drugs are belladonna, digitalis, cannabis, henbane, valerian, insect flowers, and Levant wormseed. Important products not commercially cultivated here are senna, rhubarb, quassia, orris root, scammony, squills, and colocynth.
* * * * * * *
Important changes in classification. — As the term “drugs” has under past acts been interpreted in different ways, it has been defined as applying only to articles having chief use in medicine. [Last italics supplied.] Gums were omitted, as they are seldom used medicinally. The provision for all other drugs was expanded to include those of animal origin. * * *
The majority opinion refers to the Summary of Tariff Information, 1929, compiled by the United States Tariff Commission for the use of the Committee on Ways and Means of the House of Representatives, in connection with the revision of the Tariff Act of 1922.' This publication is used by my associates to support their conclusion, limiting the scope of the provision for “digitalis” bo “digitalis pur-purea” only. The excerpt quoted in the majority opinion does not fully reflect the information supplied in that volume under the title, “Digitalis” (p. 187). A complete reading thereof shows' that Congress was informed that “Digitalis has become established as a common weed of waste and range lands in Oregon, Washington, and British Columbia,” and that “Very recent reports have indicated a small commercial cultivation of digitalis on Vancouver Island, British Columbia,” the source of the imported product under consideration.
For all of the reasons hereinabove set forth, the protest should be overruled, and the decision of the collector should be affirmed.