The opinion
DISSENTING OPINION
Leneoot, Judge:
I feel impelled to dissent from the conclusion reached by the majority herein. In my opinion the involved barometers are not machines, classifiable under paragraph 372 of the Tariff Act of 1930, but were properly classified by the collector.' They are not, in my judgment, contrivances “for utilizing, applying, or modifying energy or force or for the transmission of motion,” within the meaning of those terms as used in the leading case of Simon, Buhler & Baumann (Inc.) v. United States, 8 Ct. Cust. Appls. 273 , T. D. 37537, and it seems to me that the conclusion reached by the majority is *173 contrary to our construction of the above-quoted words in the case of United States v. McNab, 21 C. C. P. A. (Customs) 406, T. D. 46928.
In the latter case we held that a device used to determine the horsepower of the engine of a vessel transmitted through the propeller shaft was not a machine for the reason that it did not utilize, apply, or modify energy, and did not transmit motion. We there said:
We do not think the article in question is a mechanical contrivance for utilizing, applying, or modifying energy or force, or for the transmission of motion, within the meaning of those terms as used in the leading case of Simon, Buhler & Baumann, Inc. v. United States, 8 Ct. Cust. Appls. 273 , T. D. 37537.
The device certainly does not transmit motion, for it is attached to nothing but the propeller shaft, which causes the device to revolve. While it may be said that motion is transmitted from one part of the device to another, there is no motion transmitted outside of the device itself. It is clear that the device does not modify energy or force. The only energy or force applied is that exerted by the engine upon the propeller shaft, and the torsion meter does not in any way modify such energy or force.
But one question remains, viz, Does the torsion meter utilize energy or force? Its only purpose is to measure the energy transmitted through the propeller shaft for the purpose of driving the propeller of the vessel. The torsion meter does not take from said propeller any appreciable amount of energy, and, as we understand it, reproduces only in a magnified way the action of the propeller shaft itself.
We think that the term “utilizing * * * energy or force” must have a reasonable construction, and while it is not possible to declare exactly what constitutes a utilization of energy or force, we are of the opinion that the mechanism here involved should not be regarded as utilizing energy.
The mere fact that the contrivance there involved did not possess gears, levers, or cog-wheels was not relied upon by us in holding that it was not a machine.
I submit the barometers here involved do not utilize energy. They merely measure it. In the case last above cited the torsion meters received energy from the propeller shaft, but only to measure the energy transmitted through the propeller shaft. So here, the device does not utilize atmospheric pressure, but merely measures it. It does not modify the energy created by atmospheric pressure in any way. It clearly does not transmit motion, for, as was said in the torsion meter case, while it may be said that motion is transmitted from one part of the device to the other, there is no motion transmitted outside of the device itself.
Thus it has none of the elements of a machine declared essential in the definition in the Simon, Buhler & Baumann case, supra, as further interpreted by us in the McNab case, supra.
In my opinion the conclusion of the majority is not consistent with our holding in the case last cited, and will open paragraph 372, supra, to a large number of devices which I do not believe have heretofore been considered to be machines. A few of such devices that come to my mind are automobile tire gauges, dial thermometers, *174 gasoline gauges, oil, water, and steam gauges, and a Lost of other devices not eo nomine provided for in the Tariff Act of 1930.
In my judgment, any device which simply measures energy without the application of any force or energy outside of the energy to be measured is not a machine, and therefore the judgment appealed from should be reversed.
•Garrett, Judge, joins in the dissent.