United States v. Sixty-Five Terra Cotta Vases

• Decision Date: 16 November 1883
• Citation: 18 F. 508
• Parties: UNITED STATES v. SIXTY-FIVE TERRA-COTTA VASES, etc.
• Court: U.S. District Court — Southern District of New York

18 F. 508

UNITED STATES v. SIXTY-FIVE TERRA-COTTA VASES, etc.

United States Circuit Court, S.D. New York.

November 16, 1883

Elihu Root, U.S. Atty., for the United States.

Coudert Bros., proctors for claimant.

WALLACE J.

This writ of error is brought to review a judgment of the United States district court for the southern district of New York dismissing the libel of information. The suit was brought to condemn certain terra-cotta vases, Etruscan vases, stone images, spears, lances, and other articles, because of their alleged fraudulent entry upon importation by the owner to avoid the payment of duties. The evidence, in connection with the admissions of the pleadings, tended to show that the imported articles were a collection of antiquities imported by one De Morgan for sale, but that he represented in the invoice used upon the entry of the articles that they were a private collection, and were not imported for sale, and that the representation was false, in that they were imported to be sold. The judge ruled upon the trial that the imported articles were exempt from duty, and that as they were not dutiable there was no legal fraud in the attempt to evade the payment of duties, and he therefore directed a verdict for the owner.

Whether the articles were exempt from the payment of duties or not depends upon the construction and effect to be given to two clauses of section 2505 of the Revised Statutes of the United States. That section declares that certain designated articles shall be exempt from duty, among which, in distinct clauses, are 'cabinets of coins, medals, and all other collections of antiquities, they fell within the first clause. It was insisted for the government that only such collections are within the meaning of that clause as are ejusdem generis with coins and medals, and, as the articles in suit were not of this description, they were dutiable. It is impossible to give any effect to the second clause unless this position is correct.

The learned district judge, in his opinion delivered at the trial, reviewed the provisions of the tariff acts on the subject which had been enacted prior to the revision of the statutes, and was controlled in his conclusions by the fact that the first clause had existed from 1846 until 1870, and the second was first enacted by the act of July 14, 1870; and as this later act was designed to extend the free-list, it did not, in his opinion, afford a sufficient indication of a purpose to restrict the provision of the former act to have that effect. It seems to have been overlooked that in the tariff act of 1861 there was a proviso that is material in this aspect of the question. Among the articles declared exempt by that act are, in one clause, 'cabinets of coins, medals, and all other collections of antiquities;' and, in another clause, 'all collections of antiquity provided the same be specially imported by any society * * * for the encouragement of the fine arts. ' When the act of 1870 was passed, therefore, 'all collections of antiquity 'were not unconditionally upon the free-list. ' That act limited the proviso of the act of 1861, so that the collections of antiquities which had theretofore been exempt only when specially imported by societies, were thenceforth exempt when imported by any person 'not for sale.' Thus the act of 1870 enlarged the free-list, instead of restricting it. The district judge treated the question as though congress in one act had exempted all collections of antiquities from duty, and in a subsequent act, which was designed to extend the free-list, had exempted all such collections when specially imported and not...