Nicholas Benziger v. United States

• Decision Date: 04 January 1904
• Docket Number: No. 54,54
• Citation: 192 U.S. 38,24 S.Ct. 189,48 L.Ed. 331
• Parties: NICHOLAS C. BENZIGER et al., Petitioners , v. UNITED STATES
• Court: U.S. Supreme Court

192 U.S. 38

24 S.Ct. 189

48 L.Ed. 331

NICHOLAS C. BENZIGER et al., Petitioners,

v UNITED STATES.

No. 54

Argued December 10, 11, 1903.

Decided January 4, 1904.

Certain figures representing various saints, and also two figures of adoring angels, as specified in the collector's letter to the board of general appraisers, were, in March, 1899, spe- cially imported into the port of New York in good faith, for the use and by the order of societies incorporated or established solely for religious purposes. The importers claimed the figures were entitled to free entry under paragraph 649 of the tariff act of 1897. (30 Stat. at L. 151, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687.) The appraiser returned them as 'church statues, composed of plaster of Paris, decorated,' or as 'articles and wares composed wholly or in chief value of earthy or mineral substances, not specially provided for,' and the collector assessed upon them a duty of 45 and 35 per cent ad valorem under paragraphs 97 and 450 of the same act (pages 156, 193).¹ If dutiable, no question is made as to the correctness of the decision of the collector in assessing the duties as he did. The contention is that these figures were 'specially provided for' in this act under the paragraph above mentioned, 649.

The importers protested against the decision of the collector, and the case went to the board of general appraisers. Testimony was taken by the board and it found as a fact the manner in which the figures were made, which was as follows:

'The clay model of the subject, of desired size, is covered by a workman with a coating some two inches thick of plaster of Paris. When this coating has 'set' or hardened sufficiently, the clay figure inside is broken up and removed, and a plaster of Paris mould thereof thus obtained. Plaster is then carefully forced into this mould, and when dry is taken out in the form of the original clay figure. This plaster figure, after having been carefully gone over by an artist or skilled workman to cure any defects in the moulding, is in turn thoroughly covered with specially prepared plaster for the final mould. This is made in sections, which when dry are removed, and together form a perfect mould, and this composite mould becomes the manufacturer's substitute for the artist's clay or plaster cast model from which he (the manufacturer) produces his moulded statues in unlimited numbers. In the moulding process the several sections of the mould are in turn laid with the concave side upward, and have a lining of 'carton pierre,' one-half inch or more in thickness, carefully laid and pressed into them by the moulder's hands with the aid of suitable tools. The extended arms, fingers, and other slender parts are strengthened by pieces of iron wire laid in the 'carton pierre,' which is then lined either with heavy paper or coarse woven vegetable fiber cloth secured with glue. After the 'carton pierre' has dried sufficiently, the several sections of the mould are removed and their contents joined together around a framework of wood, and a figure is thus formed, the counterpart of the original model. The statue then goes to a skilled workman called a 'finisher,' who, with knife or other instrument removes any roughness resulting from the joining of the sections, cures any other defects in the moulding, and smooths it down generally. It is then passed to the painter and decorator, who completes it in the style desired. The statues in 'carton romain' and in 'stone composition' are made in the same manner, except that the latter are uniformly lined with coarse cloth. The stations of the cross in 'carton pierre' and in terra cotta are produced in substantially the same way (those in terra cotta, however, being kiln dried or baked after moulding), and are painted and decorated in quite the same manner as the statues, the foreground and other landscape or perspective effects being painted in suitable tints or hues.'

The protest was overruled by the board, and a petition for a review was duly filed by the importers (petitioners) and the case heard in the circuit court, southern district of New York, and that court affirmed the decision of the board. 107 Fed. 257. An appeal was taken to the circuit court of appeals, where the decision of the circuit court was affirmed on the opinion of the court below. Upon petition of the importers a writ of certiorari was issued from this court, and the case brought here for review.

Messrs. W. Wickham Smith and Charles Curie for petitioners.

[Argument of Counsel from pages 40-42 intentionally omitted] Assistant Attorney General McReynolds for respondent.

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:

The petitioners claim that the figures in question here are entitled to free entry under the provision of paragraph 649 of the tariff act of 1897 (30 Stat. at L. 151, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687), as being 'casts of sculpture, where specially imported, in good faith, for the use and by order of any society incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes,' etc. The board of appraisers thought that on July 24, 1897, the day of the passage of the tariff act, and for many years prior thereto, those figures belonged to a class which was known in commerce, in art, and to the classifying officers of customs of the United States as 'statuary,' and specifically as 'church statuary.' In the opinion of the board it was stated:

'It is the practice of professional sculptors to have their original creations in clay reproduced in plaster of Paris for permanent use as models from which the objects are sculptured in marble, stone or other material. The sculptor invariably goes over his plaster cast with utmost care, not only repairing any defects in the moulding, but defining more accurately the hair, finger nails, folds of the drapery, and outline generally, and, above all, perfecting the facial and general expression. These plaster of Paris models are known in commerce and in art as 'casts of sculpture.' They represent the artist's right and title to his creation, and unlike the merchandise in question here, are not painted and decorated, nor dealt in as ordinary commercial articles. Casts in plaster of Paris are likewise produced from rare objects of sculpture, generally for use in museums or art institutions, but sometimes for reproduction by sculptors in marble, stone, etc., and are also called 'casts of sculpture,' but are in strict sense 'casts from sculpture,' being cast from plaster of Paris from sculptural objects, such, for example, as the high relief frieze of the Parthenon at Athens, the facade of the guild of the Butchers house at Hildesheim, the tomb of Englebert, and other works in the Metropolitan Museum of Art mentioned in the testimony of Messrs. Stoltzenberg and Trueg.'

The board was of opinion that these figures were what is known in commerce, in art, and in common speech as 'statuary,' and were not 'specimens or casts of sculpture,' and were therefore assessed, as stated.

If these figures were to be entered as statuary, they would come in free under paragraph 649 of the act of 1897, but for the limitation contained in paragraph 454, which limits the term 'statuary,' as used in the act, so as to 'include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster or from metal, and as is the professional production of a statuary or sculptor only.' The circuit court did not regard it necessary in the disposition of the case to determine whether these particular figures would come in free as casts of sculpture under paragraph 649, if imported in the crude state, but held that as the figures had been painted and gilded, they were not thereafter casts of sculpture within the meaning of the act.

Upon the argument of this case at bar frequent reference was made by counsel to the provisions in former tariff acts upon this subject, as bearing upon the proper construction of the one under consideration. For convenience these provisions are reproduced in the margin as they existed in the act of 1861 (12 Stat. at L. 178, 193, chap. 68); the Rev. Stat. (§ 2505, pp. 482, 487, 488); the act of 1883 (22 Stat. at L. 488, 514, 520, chap. 121); the act of 1890 (26 Stat. at L. 567, 608, 609, chap. 1244); the act of 1894 (28 Stat. at L. 509, 543, 544, chap. 349); and in the present act of 1897 (30 Stat. at L. 151, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687).

An examination of the provisions of the various statutes shows a somewhat uniform purpose on the part of Congress to provide free entry to casts of marble, bronze, alabaster, or plaster of Paris, and also statuary and specimens of sculpture, when specially imported, in good faith, for the societies enumerated in the acts. It is also seen that under the language used in these different paragraphs, which may be described as the 'philosophical and scientific,' and the 'regalia and gems' paragraphs, some article might be admitted under either paragraph. There is no doubt that under the tariff acts prior to that of 1897, these figures could have been admitted free of duty, as 'casts of plaster of Paris.' Indeed, the Treasury Department had so decidedin a case hereafter cited. Those words, 'casts of marble, bronze, alabaster, or plaster of Paris,' which appear in all the statutes cited prior to 1897, in the philosophical apparatus paragraphs, are left out in the act of 1897, paragraph 638, and it is therefore urged that the figures are not entitled to free entry, as they are not casts of sculpture, provided for in paragraph 649. The question is, therefore, whether the omission of those words in paragraph 638 prevents the free entry of these figures, or are they properly described as casts of...