(dissenting). I am constrained to dissent in these cases. Paragraph 87, under which the importers primarily claim, is limited in its application to fire brick weighing not more than 10 pounds each. These brick exceed that weight, and are not within the paragraph unless they can he brought in by similitude. But to do so wholly wipes out the statutory distinction. In my opinion, the similitude clause cannot have that effect, and does not bring in the identical material embraced in an act when in a condition expressly excluded from its operation.

Paragraph 97, under which the government claims, applies only to earthen articles susceptible of decoration. Fire brick have no similarity to them.

In my opinion, the merchandise should be assessed for duty under the general provision relating to manufactured articles not otherwise provided for.

The articles in question are retort settings. The collector classified them as articles composed of earthy or mineral substances, under paragraph 97 of the act of July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1633), which reads:

“Articles and wares composed wholly or in chief value of earthy or mineral substances, or carbon, -not specially provided for in this act, if not decorated in any manner, thirty-five per centum ad valorem; if decorated, forty-five per centum ad valorem.”

The board classified them under paragraph 87:

“Fire-briclc weighing not more than ten pounds each, not glazed, enameled, ornamented, of decorated in any manner, one dollar and twenty-five cents per ton; glazed, enameled, ornamented, or decorated, forty-five per centum ad valorem. * * * ”

In Dinglestedt v. United States, 91 Fed. 112, 33 C. C. A. 395, this court held that paragraph 86 of the tariff act of August 27, 1894, c. 349, § 1, Schedule B, 28 Stat. 513, which is similar to paragraph 97 of the act of 1897, applies only to articles susceptible of decoration, a view which seems to have been approved by the Supreme Court in United States v. Downing, 201 U. S. 354, 358, 26 Sup. Ct. 788, 50 L. Ed. 786. These retort settings are admittedly fire brick, and they are certainly not susceptible of decoration within this construction of the act; that is to say, though any article can be decorated, these never are decorated, and it would be absurd to do so. They, therefore, cannqt be said to be enumerated in paragraph 97; and, although fire brick, they are *319not enumerated in paragraph 87, because, weighing more than 10 pounds each, they are expressly excluded from it.

We are therefore left to determine, under section 7 of the act, what enumerated article they most resemble in material, quality, texture, and the uses to which they may be applied. Obviously, they resemble fire brick in all these respects; indeed, they are fire brick. The late Judge Townsend so held in the Circuit Court in Wing v. United States (C. C.) 119 Fed. 479. Identity would ordinarily exclude all question of similarity, but not in this case, because of the distinction made between fire brick under and over 10 pounds in weight.

The government objects that this construction entirely nullifies the provision of paragraph 87 that it shall not apply to fire brick weighing more than 10 pounds each. Congress has prescribed just what tests are to be used to determine similitude, and the amount of duties to be paid is not one of them. If this results in an incongruity, the inference is not that the prescribed tests should be abandoned, but that those who drew the act, through oversight or otherwise, failed to express the intention of Congress.

Judgment affirmed.