DISSENTING OPINION
Bland, Judge:I concur in the dissenting opinion of Judge Garrett and desire to emphasize certain features of the same.
I can not agree with the position taken by the majority for the-reason that it gives conflicting meanings for the words “used” and “use” as found in the same paragraph. In other words, the conclusion of the majority is that advertising the model itself is not a model use when construing the first part of the paragraph, but it is-not “any other use” when that term is construed.
It must be remembered that the collector in passing upon the-admissibility of a model under this paragraph (par. 1620) must consider two things: First, is it to be used exclusively as a model; second,, is it incapable of any other use than a model use? If the words “incapable of any other use” were not in the paragraph, he might have no difficulty in performing his duty, in accordance with the majority view, but he will find himself in an embarrassing position in applying both tests to it. In articles like the ones at bar, if held dutiable, he must decide that they are not to be used exclusively as models because-they are used for advertising. He must also find that the particular model under consideration is incapable of any other use than a model use, to wit, incapable of an advertising use. The latter finding he can not make because he knows that there is no model, whether it be for construction purposes or Patent Office purposes, but what is capable of being used in the exact manner in which this article was used, and which use has controlled its classification. All of this goes-*341to show that when Congress used the words “incapable of any other use,” knowing that articles like those at bar were capable of an advertising use, it did not intend that such an advertising use as is herein shown should be regarded as a use other than a model use.
The majority opinion attempts to answer this contention with the use of the following language:
In our opinion the phrase "incapable of any other use” in the statute alludes to a substantial, practical use for some Utilitarian purpose, arising from the structure of the article itself, and not some accidental, occasional, or fugitive use.
Further along it is said that the phrase goes to the function of the article, and by the use of the word “function” an attempt to distinguish the last from the first one is made.
The argument that one term has reference to “function” and the •other term has reference to something else, must be accepted as a •concession that different meanings are given to the two phrases, notwithstanding the fact that the last phrase refers directly to the first and must mean “any other use” than a use as a model. In my view, the result of the peculiar argument on the difference of the two phrases is to totally ignore the phrase “incapable of any other use,” and, indeed, unless you do ignore it, since all models can have a display use, the meaning of the words “to be used exclusively as models,” ascribed by the majority, could not be accepted upon any theory.
It may be that Judge Garrett’s view of .the case and the view which I entertain, if declared to be the law, might permit models free •entry which were not used exclusively for building or Patent Office purposes, but this is the concern of Congress, and in view of the facts before it concerning the Boas case, it is reasonable to conclude that it would have employed different language if it sought 'to accomplish the purposes which the majority decision brings about by judicial ■construction.
Conditions might not be as bad as are portrayed in the majority ■opinion in which it is said:
We do not believe it was the intention to permit a manufacturer in some foreign •country with a subsidiary American corporation to prepare any desired number of miniature reproductions of goods which it had to sell and distribute them through the United States gratuitously, and evade the payment of duty under the claim that they were models and used exclusively as such. Great abuses will necessarily follow from any such construction of the law which seems to be framed in careful and exact language, with the idea of not permitting any such construction.
The construction which the majority think might lead to abuse would not permit the importation of “miniature reproductions of goods which it had to sell”' except such goods as were “models of invention and of other improvements in the arts.”
*342It is my opinion that the words “incapable of any other use” clearly refer to the use of a model for the purpose for which its original was intended or for some other substantially commercial use for which it as a model was not designed. If this model could be used as part of a vehicle on a track or if it could be used as part of a lawn mower, or as part of any other mechanical apparatus, it would not be a model within the paragraph.
I am in entire sympathy with the viewpoint that the legislation would not permit free entry of a so-called model of a steamship which did not purport to call attention to the structure or form of the steamship but was meant to advertise the business of transporting passengers.
The model at bar is shown to be imported to be used as a model exclusively, in my judgment, and it is also incapable of any other use than as a model and is also incapable of the kind of advertising use which Congress sought to get away from in the Boas case. It, therefore, meets both requirements of the statute.
I submit that if a model printing press, 6 inches square, imported for use in the Patent Office, was before the collector for classification, he would be required, in determining its classification under the paragraph, and before giving'it free entry, to determine that it was incapable of a use like that which is shown to characterize the article at bar. This he could not conscientiously do because it is capable of being made in great numbers and capable of being exhibited in the exact manner as were the drive wheels in controversy.
Under the ruling of the majority, one of the model drive wheels, being used for construction purposes, was entitled to free entry. It would seem that the articles were capable of being segregated. Just what the majority wants done with this model is not disclosed and yet, with all the others, it is declared dutiable. Presumably this attitude is required, since it was capable of “any other use,” to wit, an advertising use.
The judgment of the court below on this record should have been affirmed.