IN RE MASSACHUSETTS GENERAL HOSPITAL.
In re MASSACHUSETTS GENERAL HOSPITAL.
(Circuit Court, D. Massachusetts. July 7, 1899.)
OUSTOMS DUTIES-CLASSIFICATION-SCIENTIFIC INSTRUMENTS.
Surgical instruments, specially designed and adapted for use In surgery, are "scientific instruments," and as such, when specially imported in good faith by a general hospital, established, among others, for educational purposes, fo)' use in its clinics and training school for nurses, are entitled to free entry, under paragraph 585 of the tariff act of 18!J4 (28 Stat. 543).
Gaston & Snow, for petitioner. Boyd B. Jones, U. S. Atty. COLT, Circuit Judge. This is an application by the Massachusetts General Hospital for a review of the decision of the board of general appraisers, affirming the action of the collector of the port of Boston in the assessment of duties on a case of surgical instruments entered October 28, 1895. The duties were assessed under paragraph 177 of the tariff act of August 27, 1894 (28 Stat. 520):
"Manufactured articles or wares, not specially provided for in this act, composed wholly or in part of any metal, and whether partly or wholly manufactured, thirty-·five per centum ad valorem."
The petitioner, in its protest, claimed that the articles should have been admitted free of duty under paragraph 585 of the free list (28 Stat. 543), which reads as follows:
"Pbilosophical and scientific apparatus, utensils, instruments and preparations, including bottles and boxes containing the same; statuary, casts of marble, bronze, alabaster, or plaster of Paris; paintings, drawings, and etchings, specially imported in good faith for the use of any society or institution incorporated or established for religious, philosophical, educational, scientific, or literary purposes, or for encouragement pf the fine arts, and not intended for sale."
The evidence shows that the surgical instruments in question were imported in good faith for the use of the Massachusetts General Hospital in its clinics and training school for nurses; that they were specially designed and adapted for use in surgery, and were such instruments as were ordinarily used by surgeons in the practice of their profession. The experts testified that they were scientific instruments, for the reason that surgery is a science, and the instruments were specially designed for use in surgical operations. There was no evidence that the instruments were used for any other purpose. The question presented is whether ordinary surgical instruments are "scientific instruments," within the meaning of the statute. The answer to this question is not free from difficulty. By one rule of interpretation, all' instrument may be classified as scientific, by reason of its use in a particular science, for which it was primarily designed and is principally employed. By another rule of interpretation, an instrument may be classified as scientific, according to the intrinsic character of the instrument itself, and without regard to its use. Further, an instrument which at one time may have been properly classified as scientific may, by reason of its common use in
the trades and arts, to be so considered, and become generally recognized as .merely: mechanicaL ,'.' The tariff aCf. of. .1883 (22 Stat.. 513,. c. the following provision: . ... ' .rem."
"Philosophical apparatus and instfl1fuentll, thirty-five per centum ad valo-
Under. this provision themea,ning'of words "philosophical appaI'a,tu,s and ins.truments" was cOli$trlled by the. supreme court in Robertson v. Oelschlaeger, 137 p. $. 436,438, 11 Sup. ct. 148. In that case Mr. Justice Bradley, speaking for the court,said:
"There Is undoubtedly a clear distinction. between mechanical implements and philosophical instruments or apparatus. ...." .. It is somewhat difficult, in practice, to draw the line of distinction between the two classes, inasmuch as many instruments, originally used only for the purpose of observation and experiment, have sinCe come to be used" .partially or wholly, aSi :implements in the arts; on the other hand, man:yimplements merely:w.echanical ll.re constantly used as aids in carrying on obst;!rvlltions and experiments of a philosophical Character. The most that can be! done, therefore, Is to distinguish between those' implemetits which are' more 'especially used in' making observations, experiplents, and' discoveries, andtho!le which are more especially used in the arts and professions. For example, an astronomical tll,lescope, a compound microscope, a Hhumkorf. coil, wouid be readily' classed as philosophical instruments or apparatus, 'Yhlle the Instruments commonly used by surgeons, physicians, surveyors, and navigators, fOr the purpose of carrying on their several professions and callings, would be classed among mechanical Implements; orillt;ltfume:qtsfor prac,tical use in thellJ;ts andprofessio l1$.' In short, pl).ilosoJ;lhlcal apparatus and. iJ;lstruments .aril such as are more commonly used for the purpose of making observations linddiscoveties in nature, and experiments for developing and exhibiting natural forces, and the c.ondltions under wllich they can be called into activity; whiJe implements for xnechanical or professional use in the arts, are such as are more usually elll;ployed in the trades and professions for performing the operatipns, incidental thereto,"
In that case; a, small IIlicroscope, used for examining textile' fabrics, was held to be a mechanical instrument, while a compound microscope was held to be a philosophical instrument; a common ml;lgnifying used for. reading. print, was held, to '. a mechanical instrument,. while. a magnifying glass, with a Coddington lens, was held to be a philosophical instrument; an ordinary thermometer was 'held to bea mechanical instrument, while a thermometer with an arrangement for recording the maximum and minimum temperatQ,res was held to be a philosophical instrument. . By paragraph 585 of the act of 1894, congress added the word "scientific" .to "philosophical," and admitted free of duty"Philosophical aI!d scientific apparatus, utensils, Instruments, and preparations, including bottles' and boxes containing the same; casts of marble, bronze, alabaster, or plaster Of Paris; paIntings, drawings,' and etchings, specially imported In good faith for the lise of any society or Institution incorporated .' 91' eliltaqlished for religious, philosophical, educational, scientific, or literary purposes, 0.1' for. encouragement .of the fine arts and not intended for sale." " .
This whole ,provision is :lUuch broadEll'in scope aJld pu.rpose than the earlier ,!,!tatute of 1883r relating, to; philosophical instruments. It evident intention of congress" by this act, to aid the advancement. of lmowledge by admitting free of duty philosophical and scieJlti:6c instruments and worka ot,art, used for the purpose
IN RE MASSACHUSETTS
of instructicm, observation, experiment, or discovery, by institutions organized for the promotion of science, learning, and the fine arts. This provision came before the court in U. S. v. Presbyterian Hospital, 18 C. C. A. 338, 71 Fed. 866, 38 U. S. App. 201. That case was similar to the present ease. It involved the proper classification of certain articles imported for the use of a hospital, "in connection with its clinics and training school, and [which] were adapted for use by physicians and surgeons in the treatment of diseases or physical injuries." The board of general appraisers in that case, following the distinction between "philosophical" and "mechanical" laid down in Robertson v. Oelschlaeger, held that the instruments were mechanical, because they were used by physicians and surgeons in the practiCe of their profession. The circuit court reversed that decision, holding that all the articles were scientific instruments, because defor use in medical science. The circuit court of appeals reversed the decision of the circuit court, upon the ground that:
"The term 'scientific instruments' is intended to refer to the intrinsic character of the thing itself, and means any instrument which, in ordinary definition or the acceptation of experts, would fall within that category; and, in cases arising under the statute, what is or what is not such an instrument is to be determined as a question ot fact, according to the nature of the thing itself, and not necessarily according to the nature of the use for which it is primarily designed, or in which it is principally employed."
Following this interpretation of the statute, the court of appeals decided that part of the articles in question were scientific instruments and part were not. This rule of interpretation is seemingly in conflict with Robertson v. Oelschlaeger, where the supreme court adopted the rule of "principal use," rather than "intrinsic character," with respect to philosophical instruments. Further, there are practical difficulties in the way of satisfactorily determining, by the!estimony of experts, whether each imported article is or is not as'cientific· instrument, by reason of the intrinsic character of the thing itself. Moreover, this construction does not seem to effect the purpose ofille statute, ·which is to aid the advancement of science and the nne arts by the admission free of duty of the means or instruments n.ecessary to that end. The main contention of the government in the present case is that the language used by the supreme court in Robertson v. Oelschlaeger respecting "philosophical instruments'" is applicable to "scientific instru:\Il mts," under paragraph 585 of 'the act of 1894, and that the articles in question should be classed as instruments, because their principal use is by surgeons in the practice of their On the other hand, the importer claims that they should be classed as scientific instruments, because surgery is a science, and the instruments are specially designed for use in medical science, and are primarily employed for such purpose. The case of Robertson v. Oelschlaeger related to the construction of the term "philosophical instruments" in the act of 1883, which assessed a duty of 35 per centum ad valorem on such instruments. The present case relates to the construction of the tern "scientific instruments" in the act of 1894, which admits free of duty philosophical and scientific instru-
95 FEDER4-L REPORTlDR:
ments, :bnported for the use of. institutions organized for educaBJ:I.Q.scientific purposes. As' laa distinction between philosophy and science, so there may bes81d to bea distinction· between philosophical instruments and scientUic ,instruments. Philosophy has reference "to the fundamental part ,of any science,"-to "general principles cOl;mected with a gcience, but not forming part of it" Science, on the other hand, signifies "knowledge, coordinated, arranged, and systematized." It is knowledge "gained by systematic observation, experiment, and reasoning." Philosophical instruments, as defined by Mr. Justice Bradley in Robertson v. Oelschlaeger, are such as "are more especially used in making observations, experiments, or discoveries"; or, more specifically, "philosophical apparatus and "instruments are such.. as are more commonly used for the purpose of making observations and discoveries in nature, and experiments for developing and exhibiting natural forces, and the conditio,ns under which they can be called into activity." Scientific instruments may be said to be such as are specially designed for use, and principally employed, in any branch of science., Such use lIlay be for the purpose of observation; experiment, or instruction, or it may be a use in connection with the professional practice of a particular science. The use of a surgical instrument by surgeons in the practice of their profession is as much a strictly scientific use as when it is employed in clinics and training schools, or for the purpose of experiment. All these uses are equally scientific, because they specially concern a particular branch of science. The use of ,philosophical instruments, from the nature of the subject to which they relate, may be said to be limited to observations, experiments, and discoveries, while the use of scientific instruments, from the nature of the subject to which they relate, may extend other, purposes. Under the doctrine of "principal use," laid down in Robertson v. Oelschlaeger, an instrument is not to be classed as phjlosophical, but mechanical, when its principal use is in the arts, trades, or professions, because such use is not philosophical. So it may be said that an is not to be classed as scientific, but mechanical, when its principal use is in the trades or arts, because such use is not v. Oelscientific. The language of Mr. Justice Bradley in schlaeger, respecting what instruments would be classed as mechanical, must be taken in connection with the question before the court, whichre1ated to "philosophical .instruments" in the act of 1883. A strict application of the language in that case, in drawing the distinction between "phi1(isophical" and "mechanical" to the present case, is to make "philosophical instruments" and "scientific instruments" oonvertible temis, or to mean the same thing. It also results in a narrow and illogical construction to this provision of the statute. Xo hold that an instrument specially designed and adapted for use ip IDed-ical science is to be classed as scientific when principally usel), iI:a surgical operations in clinics and training schools, and is not to be. so classed when commonly used by surgeons in the same operations in the practice of their profession, does not commend itself to reason or to common sense.
UNITED STATES V. ROUSSOPULOUS.
Looking at the whole of paragraph 585, and giving to it a construction in accordance with what seems to have been the intention of congress, the term "scientific instruments" means instruments specially designed for use in any particular science, and which are principally employed for such purpose; and, surgery being a science, it covers the surgical instruments in question in this case, which were imported for the use of the Massachusetts General Hospital in its clinics and training school. The fact that such instruments are employed by surgeons in the practice of their profession does not make them mechanical instruments. Instruments of this kind, in our opinion, are scientific instruments, within the meaning of the statute, until it is shown that their principal use is in the trades and arts. For example, an ordinary knife is a mechanical instrument, because its principal use is in the trades and arts, while a surgeon's knife, specially designed for use in surgery, and principally used for such purpose, is a scientific instrument. As applied to scientific instruments, this construction does not seem in any way to conflict with the views expressed by the supreme court in Robertson v. Oelschlaeger, and the doctrine of principal use recognized in that case. The question is raised that the petitioner is not an institution "incorporated or established" for any of the purposes mentioned in paragraph 585. Upon this point the evidence shows that one of the purposes for which the hospital was established was educational, although that may not have been the principal design. The decision of the board of general appraisers is reversed.
UNITED STATES v. ROUSSOPULOUS.
(DIstrict Court, D. Minnesota. Third Division. April 24, 1899.)
CoUNTERFEITING-ToKENS INTENDED TO CIRCULATE AS MONEY.
Circular metal tokens, which, though of similar color, differ In size, and wholly In design from any coin of the United States, and are only from one-sixth to one-fifth the weight of the coin the nearest the same size, and which do not purport to be money, or obllgatlons to pay money, but contain the names of business concerns, with the statement that they are good for a certain value in merchandise, are not tokens In the likeness and simllltude of coins of the United States, nor intended to circulate as money, and to be received and used in lieu of lawful money, within the prohibi· tion of Rev. St. §§ 3583, 5462, or of the act of February 10, 1891.
On Demurrer to Information. Milton D. Purdy, Asst. U; S. Atty. J. M. Hawthorne, for defendant. LOCHREN, District Judge. The defendant (lemurs generally to the information in this case, the first four counts of which charge that the defendant, at the time and place state!I, did make and issue tokens and obligations of metal, each for a sum less than one dollar, intended to cirCUlate as money, and to be received and used in lieu of lawful money of the United States. Two additional counts charge that the defendant, at the same time and place, did make