DISSENTING OPINION
Fokd, Judge:I am of the opinion that the classification herein is correct.
In the case of Alex. Benecke v. United, States, 30 CCPA 55, C.A.D. 214, which involved steel rolls for use in a rolling mill used in cold-rolling steel, the appellate court held said articles to be parts of machine tools. In reviewing what constituted “machine tools,” the court made the following observations:
The term “machine tools” seems to have first appeared in the 1909 tariff act where a duty upon them was provided under that designation but the term was not defined. •
*86The 1913 tarlfC act for the first time in tariff legislation, so far as our researches have disclosed, gave the definition of machine tools embraced in the second proviso of paragraph 372 as quoted supra, and it was repeated in the same words in the 1922 and 1930 acts. By its terms it limits any machine tools covered by the paragraph to those used for wort on metal. * * *
In the case of Keith Dunham Co. v. United States, 26 CCPA 250, C.A.D. 24, relied upon by the majority, there was involved the classification of merchandise which comprised part of a device, known as a “secator.” The function of the secator was cutting through metal plate on a predetermined line by means of an oxy-acetylene flame, emanating from the torch. The issue there presented was whether or not the “secator” was part of a machine tool under paragraph 872 of the Tariff Act of 1930, or a portable tool under the provisions of paragraph 853 of the Tariff Act of 1930. The court therein held said merchandise not to be a machine tool. The court also stated that the meaning of the statutory definition of “machine tools” is not free from ambiguity and, accordingly, reviewed the information contained in the Summary of Tariff Information, 1920, the Summary of Tariff Information, 1929, and various lexicographers.
The following statements were then made by the appellate court, in the Keith Dunham case, supra:
In addition to what has been said, the cutting of steel plate by means of oxyacetylene flame was well known in the metal industry long before the Tariff Act of 1930 became a law. We find in the 1927 edition of Thorpe’s Dictionary of Applied Chemistry, Vol. I, at page 55, the following:
Acetylene Welding and Metal Cutting. — Acetylene is largely employed for autogenous welding and for metal cutting; in the latter case extra oxygen being supplied so that the metal itself is burnt away. * * *
There are two systems of operating; in the high pressure system the oxygen is delivered from an ordinary cyclinder under pressure and the acetylene, dissolved in acetone under pressure, is also supplied from cylinders. Both cylinders are fitted with special governors, as a perfect regulation of the flame is one of the main conditions of success. This system has the great advantage of a portable outfit, and can be applied in confined spaces, but it is more expensive than the alternative system. [Italics supplied.]
We believe that if the Congress had intended machine tools to include a power-driven machine employing a flame spraying blowtorch for work on metal it would have so expressed itself. Therefore, in view of what has been herein set forth we hold that the imported merchandise is not a machine tool as defined in paragraph 372, supra. [Italics quoted.]
A review of the legislative history also leads me to conclude that the definition of “machine tools,” on or about the date of the enactment of the Tariff Act of 1930, June 17,1930, was not one in which all industry concurred. There also appears to be no doubt that the tools referred to at that time were the conventional machine tools utilizing direct physical contact in the performance of their functions.
*87Bearing in mind that approximately 33 years have passed since the enactment of the present tariff act, and also taking into consideration the various technological advances made during this period and the very principle of law that tariff acts are written for the future as well as for the present, lead me to but one reasonable conclusion. The record herein establishes that the spark erosion machine has only recently been commercially produced and was not known on or about the date of the enactment of the Tariff Act of 1930, whereas it is a matter of common knowledge, of which the appellate court, in the Keith Dunham case, supra, took judicial notice, that metal had been cut by oxy-acetylene torches for a period prior to 1929. The secator, based upon the record therein, was used for the sole purpose of cutting metal plate on a predetermined line. The imported merchandise performs the same function as a conventional machine tool and, in fact, is replacing so-called conventional machine tools, such as drilling machines, milling machines, broaches, hole broaches, shapers, lathes, etc.
There is nothing in the record in the Keith Dunham case, supra, Avhich established that the involved secator replaced any existing machine tool. The fact that the acetylene process employed by the secator was known prior to the enactment of the Tariff Act of 1930, led the appellate court to conclude that if Congress had intended to include such an article, it would have so provided. I am in agreement with the reasoning of the decision in said case based upon the factual situation of record involved therein. However, the factual situation here is totally different and is, therefore, distinguishable from the Keith Dunhan case, supra.
In a recent decision of the appellate court in the case of Lanston Industries, Inc. v. United States, 49 CCPA 123, C.A.D. 807, it was held that certain Monophoto machines were entitled to free entry of duty under the provisions of paragraph 1643 of the Tariff Act of 1930, as typesetting machines, rather than as photographic cameras and parts, under the provisions of paragraph 1551 of the Tariff Act of 1930. The Monophoto machines involved therein employed a new technique developed subsequent to the enactment of the Tariff Act of 1930, known as photo-composing, which produces a photographic transparency, rather than producing a metal type. The court therein made the following observation:
The witness, who was expert in this field, constantly referred to the hot metal, or Monotype process, as the old-fashioned process. Thus we have before us an example of technical progress requiring that we consider whether something necessarily unknown to Congress when the words “all typesetting machines” were written into the statute was intended to be included by that clause. On the facts of this case, we are unable to see in the Monophoto machine anything more than a technical advance in typesetting machines which Congress *88must have foreseen. The Monotype machine, having been well-known in the printing industry long before 1930, was presumably clearly within the ambit of paragraph 1643. Its modern version, the Monophoto, we believe, falls in the same category. The language used, “all typesetting machines,” [our emphasis] does not suggest that we should try to search out nice differences between one kind and another or exclude improvements. We are also mindful of the truism that tariff acts are written for the future. Piekhardt v. Merritt, 132 U.S. 252, 257; Newman v. Arthur, 109 U.S. 132, 138. [Italics quoted.]
In order to have a tariff act which represents more than a static document, technological advancements must of necessity be taken into consideration. Especially is this true where the record discloses that the sparking process employed by the involved machine is, in fact, replacing conventional machine tools.
In view of the foregoing, I would hold the involved Eleroda machines to be machine tools under the provisions of paragraph 372 of the Tariff Act of 1930, as modified, supra, as classified.