DISSENTING OPINION
Fobd, Judge:The record in this case has been fairly summarized in the majority opinion, so it will not be necessary for me to repeat the same here, except I wish to emphasize the following testimony:
Q. How have you seen these clips used, Mr. Frush? — A. Well, for example, the bracing plate that Mr. Weil refers to is on the bracing of the shore which is for bracing- — this bracing clip, Plaintiff’s Illustrative Exhibit #1 — is on the upper part or insert tube of the shore or its weakest part, or where the strain is the greatest, it is never used on the bracing of the shore. (R. 11.)
Q. Will you describe at which point-the bracing clip, Plaintiff’s Illustrative Exhibit #1, is placed on the shore? — A. Normally about 6" above the final adjustment point, or where the insert tube is set in the base of the shore which is the weak point of the shore — it all depends — in hand work, the bracing clip serves two purposes, to brace the insert tube to the shore, and it sets up a temporary scaffold so that the workers can make their final adjustment on their beams.
Q. Is this necessary in addition to the permanently affixed bracing plate which is also found on the shore? — A. Not on all jobs, no, sir. (R. 13.)
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Q. Do you know of your own personal knowledge instances where the angular bracing clip must be used?
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A. Yes, definitely.
Q. Will you describe the circumstances under which the angle bracing clip, Plaintiff’s Illustrative Exhibit #1 must be used? — -A. On box girder construction, on state highway work in particular, with emphasis on their use where there are curves, banks, cloverleafs, under bridges, or where the shore is double-decked, *505there are many eases where the shore is double-decked and you have a bracing clip on the top insert tube and a bracing clip on the bottom insert tube, so that you have two-way diagonal bracing.
Q. Would it be possible in any of these examples which you have just stated, to use the shore without the bracing clip?
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A. In order to avoid possible side-sway and slippage on the transverse form-work, they are used in highway construction. (R. 14-15.)
Based upon the facts in this case, I feel that the decisions in United States v. Antonio Pompeo, 43 C. C. P. A. (Customs) 9, C. A. D. 602, and Peter J. Schweitzer v. United States, 16 Ct. Cust. Appls. 285, T. D. 42872, are controlling as to the correct conclusion to be reached here.
The merchandise involved in the Pompeo case was described by the Court of Customs and Patent Appeals as follows:
The present importation consists of sixty “superchargers” which are devices used to increase the power of automobile engines by, in general, increasing the pressure at which the gasoline-air mixture is fed into the motor. Forty of the imported superchargers are designed for installation in Ford engines (or in Mercury engines which have the same block), and the other twenty for installation in Austin engines. The undisputed testimony indicates that the imported superchargers are designed specifically for use on automobiles; that extensive altera^ tions in the engines are necessary to install the superchargers; that Ford automobiles and Austin automobiles as manufactured do not have superchargers; that some makes of automobiles have been manufactured with superchargers; that superchargers are made for automobiles other then Fords or Austins, and are also sometimes installed on trucks and busses; that the Ford engine and the Austin engine will operate if no supercharger has been installed therein; and that once a supercharger has been installed in a Ford or Austin engine the engine will not operate if the supercharger fails.
Based upon the foregoing facts, the appellate court held as follows:
The cases cited by appellee, in our opinion, clearly indicate that where an article at time of importation is dedicated to a specific use, the question of whether the article is a part must be determined from the nature of the article as it is applied to that use. In the Zeiss case, supra, the court said, “In the case at bar, where a camera for which the finders represented by Exhibits A and B are designed is equipped with a lens and its corresponding finder, then the finder is necessary to the completion of the camera and is ‘an integral, constituent, or component part, without which the article to which it is * * * joined, could not function as such article.’ ” (First emphasis added.) The court did not consider whether the involved finders were parts of cameras considered in vacuo, but whether they were parts of cameras when they were applied to their intended use on the cameras. Similarly, in the Stoeger case, supra, the court did not consider whether pistols would operate without the drum magazine, for it was clear that pistols would fire with the regular magazine with which it was normally equipped. Rather, the court considered the function played by the drum magazine as it was placed in use upon the pistol, and determined that at that time it was a part of the pistol. [Italics quoted.]
The Schweitzer case, supra, is equally convincing that the subject merchandise should be classified as parts of machines, not specially provided for. The holding in that case is epitomized in the following quotation from the syllabus:
1. “Endless Belts” foe Use on Papee-Maxing Machines — Dtjtiability.
Finished articles in the form of “endless belts,” composed of wool and ordered and delivered according to specifications for use on a Fourdrinier paper-making machine in the manufacture of “tissue grade” paper, are an integral part of the machine and dutiable as “parts” of “machines * * * not specially provided for” under paragraph 372 of the Tariff Act of 1922 rather than as “woven fabrics” under paragraph 1109 or “manufactures, not specially provided for” under paragraph 1119.
*5062. Same — Trade Names, etc., as Affecting Classification.
The fact that the merchandise is known in the trade as “paper-makers’ felt,” “drier felt,” and “woolen felt,” or that it is not manufactured or furnished by Four-drinier machine manufacturers, or that it is used as integral parts of other machines, not specially provided for elsewhere, does not preclude its classification as parts of machines.
3. Machines — Integral Parts.
The articles involved can not perform their proper functions until attached to a paper-making machine. The machine is incapable of performing one of its important, ordinary, and proper functions without the aid of the “paper-makers’ felt.” Each is dependent upon the other. Accordingly, the articles in question are, at least for tariff purposes, integral parts of the machine.
It is conceded that bracing clips are not used in many of the ordinary uses of a building shore; the testimony shows that uses of bracing clips are confined to the heavy construction industry, such as box girder construction and highway construction work, such as curves, banks, cloverleafs, under bridges, or, where the shore is double-decked, a bracing clip on the top insert tube and a bracing clip on the bottom insert tube, providing for two-way diagonal bracing, is required. The purpose of such diagonal bracing is to avoid possible side-sway and slippage.
This meets the test that such bracing clips are dedicated to a specific use and become an integral, constituent, and component part of the building shore, without which the building shore, to which it is to be attached or joined, could not function as such article. It is difficult to conceive, where bracing clips prevent building shores from swaying and slipping, how such uses could be regarded as optional. In fact, the testimony of the sole witness indicates the use of the bracing clips in such cases becomes mandatory.
It is the opinion of the writer, therefore, that a building shore, without the aid of a bracing clip, when used in conjunction with the heavy construction industry, is incapable of performing one of its important, ordinary, and proper functions. Each is dependent on and implements the other.
If the sole use of the bracing clips was to provide a temporary scaffold so that workers could make their final adjustments on beams, I would be inclined to join the majority opinion. Such a use I regard as a fugitive one.
The pronouncements hereinbefore quoted appear to point to the proper conclusion in this case. Based upon the present record and following the above pronouncements, I would hold the subject merchandise to be properly dutiable at the rate of 13% per centum ad valorem under paragraph 372 of the Tariff Act of 1930, as modified, supra, as parts of machines, not specially provided for, as alleged by the plaintiffs.