UNITED STATES'll. ONE OIL PAINTING.
881
UNI'fEt> STATES V. ONE OIL PAINTING.
(Circuit (Jourt, N. D. IllinoiB. July 25, 1887.) CUSTOMS
Where an .oil that would have been entitled to' be Pltssed free of duty as lin "Ilntiquity, ' under the act of congress of March 3,1883, (clause 669, Heyl, part 2, p. 38,) if regularly entered as free, has been brought into the United· States by the owner without such entry, or p'ayment of duty, but with full opportunity to the custom·hous", officials for examination and de· mand of duty. and WIth no intent on the part of the Owner to defraud, and in the actual belief that it was not subject to duty, a proceeding to forfeit it will be barred, bil" section 21· of the act of June 22, 1874, if not brought within one vear from the, time of its importation. '
(Jraharn H,.
P. L.
Harris,
Atty., for the United States. '
for defendant.,
J. This is a proceeding on the part of the UnitedS4ttes to f<;)rfeitanqil painting, said to be by Raphael Sanzio, called "The Virgin of the Bool,{," and alleged to be worth $50,000, as a work of onli' of the old masters, on the ground that it was imported into this country in fraud of the customs laws, and without payment of duty; the seizure made on the sixth of December, 1885. The information contains four counts. all of which charge willful and intentional fraud on the part of the importer in bringing this painting into the United States without payment of duty. It is admitted that the pltinting in question was imported into the United States through the port of New York by this claimant, Henri Kieffer, from Paris, France, by the steamer Labrador, on the eighth of November, 1883; that it was packed in the trunks and boxes containing the wearing apparel and personal effects of Kieffer and his family; and the proof shows that these trunks and boxes were duly inspected by the proper customs officers at New York, and the contents passed free. 'J'he proof also shows that a large number of other pictures, vases, and articles of were also packed in these boxes, and all passed free of duty. The proof also shows that Kieffer, the claimant and importer, had for several years before his immigration to this country, been engaged in business in Paris as a house decorator and furnisher, and also as a collector, to some extent, of bric-a-brac and works of art; that several months before he left Paris, a dealer in pictures left the one now in question with Kieffer,and obtained an advance of money upon it; that afterwards this same dealer obtained from some valuable paintings from Kieffer's collection, which he was to sell at fixed prices and pay the proceeds to Kieffer; that he disposed of these paintings, but did not pay' the proceeds or any part thereof to Kieffer, and on being threatened with prosecution agreed that Kieffer should hold the Raphael picture as security for the proceeds of the pictures thus disposed of, and that Kieffer's title shoulq become absolute unless payment was made by a stipulated time. Not paying at the time fixed, Kieffer took steps in court to have his v.31F.no.14-,56
title made absolute, and, soon Kieffer, by reas9n of financial redecided t6 remove to the United States. where he- had' two brothers residing in the state of Iowa., ,,Kieffer's testimony &lso tends to show that before leaving Paris he called at the office of the United States consul, and asked what goods he was:entitled to bring into this country duty 'free,and was tOld that he could take the household goods, wearing ap,parel, alld personal effects of"hiiIlself and family, and that his pictures 'would come in the description of "personal His pictures, in-e1udingtheone with the, wearing apparel and bed'ding of' himself family', on arrival at New York ,the trunks and boxes were opened, and, as Kieffer testifies,which is not contradicted, he told the inspector that they contained wearing apparel and personal effects of himself and family, inclR-ding picturl¥l, and no merchandise; that some:of the pictures were and eiamiood by the officers, but he in 'question, is not certain that the officer actually examined di,d not tell him who painted it, nor its value. , t4iDk the 'Whole case turns uponthe faet as to whether ,Kieffer' was guilty of any. actual fraud, intent to, defraud, in theimportationof this picture.. He had iDformation (rom ttn offiCial source -that. his pictures would be passed freo as persoilal effects;, and the with ample opportunity to 'and determine 'whethei" they were' dutiable, passed them free:, ,It' Kieffer understood', :as he says'lre did, that his pictures and 'other works of art were entitled to pass free, he was not, as' it seems to me, obliged, to stQ,te the authorship value, or at least was in not doing 'picturt> was undoubtedly, upon the admitted facts !is to its au:thorship, 'Ontitled to; ,be passed free as an "antiquity,"underthe, "Free List";of of :March 3, 1883, (claus,e '669, Heyl, pt.2,.J)' 38;) but it shouldhltve been regularly enteted as such, so 'that the proper officers could. have examined and decided whether it was etititle'd to come in duty free: "$ti11, if Kieffer .onany ground he was entitled tohaV'ethis article passed free, there neglect Qfprescribed forms should not be held conclusivedf"'an intent tel d'efrdud; Section 21 of the act of June 22,1874, provides'that; '" whenever any goods, wareS, arid shall have been entered and passed 'free of duty, and when'Over any duti,es upon any imported goods, wares, and merchandise shall have been liquidated and paid, an,d stich goods, wa,res,and merchandise shaII hav(jbeen delivered to the bwner,importer, agent, orcoosignee, such ,entry and passage free of duty, and such settlement of ali ties, sllall, after the expiration of one year from the tithe df I;mtry, in the absence of fraud , and in the absence of 'protest by th'eowner, importer, agent, or Mnsignee, ,be.: final !lnd conclusive upon all parties." Here then we have a case where the article now in question was paSsed free, with, as I am the proof, no actual intent to defraUd, an,4 with full opportunity for .examination and demand of duty or compliance with forms at the time of the importation, and the lapse of about two years from the importation before the seizure. I am therefore ofopinion thatall questions as to the regularity of this importation,
.r
or
a
THAYER
V.
SEEBERGER.
883
and theentryalld passing of this article through the custom-house, are barred by this statute; and that the issue mllst be found for the claimant. There will be an order, therefore, entered, dismissing the libel, and directing the return of the picture to the claimant.
'11.
SEEBERGER, Collector.
"(OircuitOourt, N. D. IllinoiB. August 1,1887.) OusTOHS DUTIES-AsSESSMENT OF DUTY-ARTISTS' OOLORS.
An importation of "artists'. colors, " in tubes, composeq of ochre and umber, but elaborately prepared for that use, is not subject to duty under clause8'T of the new tariff index, which provides that ," colors and paints, including lakes; whether dry or mixed, or ground with water or oil, and not specially enumerated; or provided for in this act, 25 per centum ad valorem;" but should be assessed under clause 89, which provides that "ochre and ochre earth, um· ber arid timber earths, and sienna· and sienna earths, when dry, one-half of one:cent per pound; when ground in oil, one and one·half cents per pound."
Jesse
BLODGETT, J. Plaintiff imported an invoice of painters' colors, commonly known as "artists' colors," in tubes, consisting of preparations of ochres and umbers. Tlie collector assessed duty on them at 25 per centum ad valorem, under clause 87 of the new tariff index. Plaintiff insisted that the goodsin question should have been assessed at a duty of one and a half cents per poun<l, under clause 89 of the new tariff, as ochre andumber'ground in oiL ,The duties exacted were paid under protest; afiappealtaken to the secretary of the treasury, who affirmed the action 'of the and brought, in apt time, to recover the amount' paid. under protest." . The goods in question are preparations of ochre and umber for artists' use, ground in oil, and put up in small Clause 87. under which the duties J:eads lj.S follows: "Colors and paints, including lakes, whether dry or mixed, or ground with water or 'oil, and riot specially enumerated Qf provided for in this apt, 2.5 per centum ad oo'lorem J"while the clau.seunder which plaintiff insists the goods shoull1 'have been ilssessed for duty is asJollows:"Ochre and ochre earth, umber and umber earths, and sienna and siennfl, el;l.rths, when dry, one-half ,of one cent per pound;. when ground in oil, 'one 8:ud one-half cents per potind/' .,The proof shows.that the goods in question are manufactured frolritheordillary ochre alldumber by crushing and washing the ores, and then.;grinding them to;impalpable powder, under muller stones, after are mixed .with poppy oil, or some colorless oil, so as to pro;duce· pigments adapted. to the finest kind of portrait and landscapepaiJ;lting. The ordinary ochre /lnd umber used for commop purposes, such as