DISSENTING OPINION.
Smith,- Judge:I can not bring myself to concur in the majority opinion in this case. On the hearing before the board it was conceded by the Government that the importation here involved was of the same character as that involved in United States v. Britt, Loeffler & Weil (7 Ct. Cust. Appls., 63; T. D. 36389). The merchandise in that case' was fluid extract of malt, and the sole question presented by the record here is whether merchandise of that kind imported in iron drums is dutiable as malt extract, fluid, in casTcs.
The Government contends that as the term “cask” necessarily implies a wooden container, an iron drum can not be regarded as a cask, and that therefore fluid malt extract in iron drums is not provided for in paragraph 246 as held by the- board. It is admitted by the Government, however, that the protest should be sustained on the ground that the merchandise is a nonenumerated manufactured article dutiable at 15 per cent ad valorem under paragraph 385. The importers admit that the term “cask” is not broad enough to include *169iron drums, but insist, first, tbat the legislative purpose of the provision was to favor fluid malt extract in large packages because of the necessity of repacking it in this country in smaller containers for the consumer, and that consequently the quantity'contained, rather than the quality of the container, is determinative of classification,' and, second, that if fluid malt extract in containers other than casks, bottles, and jugs is not directly dutiable under paragraph 246 it is nevertheless dutiable under that provision by similitude.
“Cask”, is a generic term which embraces the tun, the pipe, the hogshead, the butt, the barrel, the half barrel, and the keg, and representing as it does containers ranging in capacity" from 6 gallons to.252 gallons and over, it might be considered' as an irregular measure of capacity. Jugs and bottles have a capacity running, let us say, from the ounce bottle to the 5-gallon jug, and in a sense they might-also be regarded as irregular liquid measures.
The provision for fluid malt extract in casks, bottles, and jugs first appeared as paragraph 33‘8 pf the tariff act of 1890, and I think it may be taken for granted that at that time fluid malt extract was imported in casks, bottles, or jugs only, and that until recent years it was not imported in drums. Under paragraph 338 malt extract in casks was assessed at 20 cents per gallon and that in bottles and jugs at 40 cents per gallon. That, I think, was a discrimination which had for its reason the containers rather- than the quantities contained. Congress, of course, knew that the extract in large quantities per unit was of necessity put up in casks; that small quantities were usually packed in bottles or jugs: and that large quantities of a commodity not ready for immediate consumption should ordinarily be subjected to a. lower rate than smaller quantities put up in packages suitable .for the consumer’s use; But Congress also knew*that some jugs would hold as large a quantity as some casks, and therefore, as it could not say that all quantities held in casks were too-large for the consumer’s use it found it impracticable to say that cask quantities should bear the lower rate and jug quantities the higher rate of duty. The extract in cask's, large or small, evidently required repacking and in that form wa.s not put up- for, sold to, or used by the consumer, whereas the extract in bottles and jugs was ready for consumption, and in those receptacles-was sold to and used by the consumer. That relation of casks, bottles, and jugs to the consumer definitely differentiated the extract which was intended for the consumer from that which was not, and it was wholly unnecessary, if not unwise, to classify the commodity or impose duties on the basis of quantities alone.
If Congress had intended that the quantity contained and not the container should determine the duty on fluid malt extract, I can not believe that the language of paragraph 338 would have been *170employed to express that purpose when the end desired might have been acpomplished unmistakably by.simply providing that packages containing-not less than 5 gallons of fluid malt extract should .pay a duty of 20 cents per gallon, and otherwise than in such packages 40 cents per gallon. Moreover, that the' lawmakers could not have intended that classification of the goods should be based on the capacity of the containers and not on the containers themselves would seem to be manifest when we consider that any such basis as that would result in laying a duty of 20 cents a gallon on 5 gallons or less of fluid malt extract imported in a keg and 40 cents per gallon on the very same quantity contained in a jug, leaving it impossible to determine whether the lower or the higher rate should be applied to quantities of less than 5 gallons imported in containers other than casks and jugs. I therefore conclude that when Congress, in 1890, imposed a duty of 20 cents per gallon on fluid malt extract in casks and 40 cents per gallon on that in bottles and jugs it intended that the container, not the quantity, should determine the- duty, and that in so doing it established a dividing line between the lower and the higher rate which might be readily identified and which was in strict accord with the principles of tariff making.
... Conceding that Congress, by providing in 1890 for fluid malt extract in casks, bottles, and jugs, really intended to provide for every form of inalt extract then known to importation, that fact does not Warrant the conclusion that conditions were actually provided for which were neither mentioned, thought of, nor foreseen. In other words, although paragraph 338 covered and was-intended to cover all malt extract in all its then known conditions, from that it can no.t be deduced that there was a legislative intention to provide for it in conditions not then contemplated, no language indicative of a purpose to cover conditions not enumerated having been used. Had Congress intended to provide in 1890 for malt extract in forms other than those specified it could have provided for it in bottles-or jugs, and “otherwise than in bottles or jugs,” just as it did for ale, porter, and beer in paragraph 337, and for ginger ale, ginger beer, lemonade, soda water, and other similar - waters in paragraph 340. I am therefore of opinion that paragraph 338 of the tariff act of 1890 did not include and was npt intended to include fluid malt extract in drums or tins or in any form other .than in casks, bottles, or jugs, and that as paragraph 246 of the tariff act of 1913 is, with the exception of the rate of duty, a reenactment of paragraph 338, the later legis lative dispensation must be given the same meaning as that accorded to its prototype, and consequently can have no greater scope than that of the earlier provision, of which it is substantially a reproduction. It maybe that fluid malt extract in iron drums should, as a matter of tariff policy, be subjected to the same rate of duty as *171that in casks, and it may be - that had Congress known that iron drums had come into use as containers of the extract, paragraph 246 would have been so worded as to. include the commodity in that form. The fact remains, however, that the extract in iron drums was not provided for in the paragraph, and that omission, whether intended or inadvertent, we have no power to supply. United States v. Shing Shun & Co. (173 Fed., 844).
The claim that fluid malt extract in iron drums is dutiable under paragraph 246 by reason of its similitude to fluid malt extract' in casks can not be sustained. The merchandise subjected to duty by the paragraph is malt extract fluid, and its nature or character as such is not altered or changed by. the character of the container in ■ which it is held. Fluid malt extract, whether in casks or in drums, is nevertheless fluid malt extract, and if 'not directly dutiable under paragraph 246 it can not be brought there by similitude, inasmuch as the commodity is not a material or .substance similar.to fluid, malt extract, but the identical thing itself:.- Schoeneman v. United States (119.Fed., 584); Fensterer & Ruhe v. United States (1 Ct. Cust. Appls., 93; T. D. 31110); Strauss &, Co. v. United States (2 Ct. Cust. Appls., 203, 205; T. D. 31946). It may be that the merchandise, is similar to some of the manufactures -of malt provided for in the act, but as the case was not tried on that theory we are left without the information necessary for a satisfactory. .deterini-nation-'-of -that' question. ' \ ■' i - - • ' " . ;
' On the record submitted to us and the admissions' of tke'Grbvefm ment I am of the opinion that the fluid malt' extract of this'casé should be assessed for duty under paragraph 385 as a nonenumerated manufactured article and that the decision of the Board of General Appraisers-should be reversed: ■ ;