IN RE HEMPSTEAD.
(Circuit Court, E. D. Pennsylvania. August 15,_ 1899.) No. 48.
CUSTOMS DUTIES-CI,ASSIFICATION-SJLR BANNERS FOR PRESENTATION TO CnURCH.
Silk banners, embroidered by hand in designs specially prepared by an artist, made and imported expressly for presentation to an incorporate(i church society, to be used in connection with its service, and whic:h deriv'e their value from their artistic appearance, and not from the fact that they are embroidered, are "works of art," entitled to free entry, under paragraph G8() of the tariff act of 1894, and are not dutiable as silk embroidery, . under paragraph 301.
Frank P. Prichard, for appellant. James M. Beck, for the United States. GRAY, Circuit Judge. This is an appeal by William O. Hemp: stead, trading as O. G. Hempstead & Son, from the decision of the board of United States general appraisers affirming the action of the collector of the port of Philadelphia in respect to the classification for duty of five church banners. In 1896 the importers brought into York five highly decorated church banners for presentation to the Trinity Lutheran Church, of Reading, Pa., by the Women's Missionary Society of the same city. The designs embodied in these banners had been specially ordered by the donors, through their president, to be made by a professional artist from Nuremburg. To aid him in this work, and in order that the banners, when completed, should correspond with the architecture of the church, photographic views of the church interior were sent to him. After these designs were completed, they were sent to the sisters of a Lutheran institution at Neu Dettelsau, Germany, who from them made the banners or hangings by the most exquisite and artistic needlework upon silk foundations. After their completion, which in all consumed about one year, the banners were sent to America for presentation to the church, after which they were to be exhibited by it during the hours of public worship. The collector of the port, upon their entry, assessed duty upon the articles at the rate of 50 per centum ad valorem,under paragraph 301 of the act of August 27, 1894, as silk embroidery. The importers filed a protest, claiming that the articles were exempt from duty, under the provisioIl of paragraph 686 of the same act, as "works of art" of the character therein designated. These two paragraphs, which are therefore involved in the determination of the character of these articles, are as follows:
301. Laces and articles made Wholly or in part of lace and embroideries, including articles or fabrics embroidered by hand or machinery, handkerchiefs, neck rumings, and ruchings, nettings and veilings, clothing ready made, and articles of wearing apparel of every description, including knit goods made up or manufactured wholly or in part by the tailor, seamstress or manufacturer, composed of silk, or of which silk is the component material of chief value, and beaded silk goods, not specially provided for in this act, fifty per centum ad valorem. 686. Works of art, the productIon of American artists residing temporarily abroad, 0,1' other works of art, including pictorial paintings on glass, imported
95 FEDERAL REPORTER,
expressly for presentation to a national institute, or to any state or munici]}!il corporation, or incorporated society, college or other public institution, inclUding or painted window glass or stained or painted glass windows; butf.·lffii:!fi. 'exemption shall be subject.to such regulations as the secretary of tbe treasury may prescribe.
ary 9, :t896) Whitt 'is knowlEldgeof, that banner? A. I bow that it was l-eeeived; ...·. There are, five baunets' :that· were received as a, prelilellt by the congrega,ttoQ.)'romt4l1"W?men'S who to flnrlchment pf .Q. Are they banners simIlar to this ?A. same size, dlfferep.t Patterns aM different colors. There is a color In White, a' 'Color In 'color in' ,purple, a color In ret:l,and a color In green.Q. 'Was the church oUNhich'yo,uspeak an Incorporated,religious society? A. sir:Q. UnderiwPlltIaW"! A. Pennsylvap,lll-.:,.q.,YOu,say this was a present to the church? A. Yes, sir. Q. By wbom? A:' The Women's Mission Society of Reading. Q. What negotiations transpired prior to the donation by 'the assOciation to tllechurch?·"A. Mrs. Muhlenburg;whQ WIlS presidelltof: this'lWomen's: society,' ",,'IlS ,traveling in Europe, and: visited the institution at NeuDettelllau, in 'Germany, whence the Protestant deaconesses come, and there-she saw the.work'ofthis(order, with which tbey . furnish churches, alid bywhioof they maintain theJinstltution for their Incomei,She:.wrote to the soCiety of' 'Which she isptesldent,and. asked that she Should be allowed to order ailet'of'these cloths for the 'use of Trinity Lutheran Church. to be made as a present or gift to the congregation; to which they consented. She Ordered"therl'U .An artist 'Was employed to draw designs,-Dr" Beck of Nuremburg.i,They 'sent to me to .get photographic "iews of the church, Inside, to
There is :but one,questlon upon which the proper classification of the banMI'S in question, therefore,depends. That they were imported expressly 'f6r 'presentation to an incorporated religious societJ' is unimpeached, testimony of the only witness who established. by was ,examined before the general appraiser, to whom, as examiner, the matter was referred. If the banners are "works of art," they admittedly fall within the provisions of section 686. If they cannot be said to be "works of art," although they may fulfill the other provisions of section 686, of c()urse tbecontention of the importer must fall. No expert evidence was taken before the appraisers. Both they and the ·collector seemed tohave acted upon their inspection of the banners in question. They returned to the circuit court thereeord and all the evidence, such as it was, before them, together with a certified statement of the facts involved in the case, and their decision thereon, This courtha.salready, in Re Hempstead (No. 31, Oct.Sess. ·1896) 95 Fed. 967, decided that "there is nothing. in the law governing the' action of the board of appraisers, which requires that· in 'every case there should be. original testimony heard. by said appraisel'S :in the case of an appeal taken to thern,or, that witnesses should. ,be actually 'caned to testify whether, in the opinion of the board,theirtestimony was necessary .01' not?' Under the provision of section 15 of ilie act of June' 10, 1890, the circuitcQurtreferred the case 'fo'oneor the genel1alappraisers as an officer of. the court to take: and return to ·the court ll$, might be ofi'eredbY1 either party. Under this order the testimony, of a single witnesliJipoodnced :by the importers was taken) :towit, the testimony of·Jac0b Fry;,prmessoI' iq, the theological seminary at Mt. Airy, and pastor; of: the'congregatiom,to whom' the banners· imported were to be presented.· Histesmmoriy is as follows: "Q. l. :show' youli bailller 'whicH \vas' entered/lil the custom house on Janu- '
UNITED STATES V. DE LUZE.
make the 'l:iaim'ers correspond with the of the church. It took abont one year to malre them, aftH' which they were shipped to the church at Heauing. This is one of them. . Q. How are those maCle, do you. know 'I A. That I could not answer. I do not know by what prqcess, it is made. Q, You testified they were made from designs? A, Yes, sir; designs drawn spedally by the artist for those. Q. Did you state the name of the artist who designed that? A. My recollection of the name is Dr. Beck,...,..Beck, at least. I do not know what kind of a doctor, whether an artistic doctor or not, but he is an artist in that line. Q. Was he a professional artist'! A. A professional artist residing in Nuremburg. Q. 'What use is made of these lJanners in the church 'I A. 'l'hey are exhibited during the hoUl's. of public worship. Q. IIow A. This one you have there is put in front of the altar. is another one corresponding to it, a smaller design, that is susllended from the llulpit, and there is a third one-there are three of each. set-that is suspended at the lectum or reading desk. Q. Have they any use as an ordin:u-y covering? A. No, sir; they are taken away after the service, and put away, and they have regUlar covering-s to put over these pulpits, etc, 'L'hese are not coverings. They are exhibited for worsllip. They are designs. Q. To the ch11rch, did these derive their value from their artistic allpearance, or from th,e fact that they are embroidered? A. Their artistic appearance. Anybody could make embroideQ', but not anybody can make that kind of work. Q. Their value to the church was entirely from their artistic appearance? A. Certainly."
It seems to the court that the contention of the district attorney ihat,considering these articles asi<works of art," they are nevertheless subject to the well-settled rule that general legislation must gi ve way to special legislation on the same subject, and that general prov,isions of such a statute' must be interpreted so as to em· brace only provisions to which the special provisions are not apcannot be sustailJ,ed. It is the general legislation which lays a dl,lty upon all embroideries. It is the special legislation that exempts from duty, not all works of art, but works of art imported "expressly for presentation to an incorporated religious society"; and a work of art imported for such a purpose, whether it be silk embroidery or dressed stone, is taken out of the purview of the general legislation imposing duties by the particular description of the section granting the exemption. The testimony of the Rev. Mr. Fry, not contradicted by that of any witness produced by the government, is taken by the court as decisive of the question that these importations were works of art within the meaning of the statute, and, as it is not contended that they were not imported for presentation to an incorporated religious society, the question before the court must be determined in favor of the importers, and the decision of the board of appraisers in the premises reversed.
UNI'l'ED STATES v. DE LUZE et al. (Circuit Court of Appeals, Second Circuit. No. 18.
CUSTOMS Du'rIES-CT,ASSIFIOATTON-GI,ASs BOTTLES.
November 15, 1898.)
Bottles coming within the provisions of paragraph 88 of the tariff act of 1894 are subject to separate duty thcreunder, though imported filled with champagne, dutiable at a fixed rate per dozen, under paragraph 243.