CONCUREING OPINION
Bland and Hatfield, Judges,concurring specially:
While we concur in the result that the collector’s classification must stand, we must respectfully dissent from the reasoning of the majority, and will briefly state our position.
*330If the exhibit before us, representing the importation, is a painting in oil which is a work of art, it is an original one and is free of duty under paragraph 1704, since, in our judgment, it is nop excluded therefrom by the “article of utility” term. If it was such an original painting in oil and was incidentally an article of utility also, within the meaning of that provision, we agree that it would be dutiable under paragraph 1449 as the particular kind of painting in oil and work of art as is therein provided for.
A review of the legislative history of the “article of utility” provision in paragraph 1704 is convincing that Congress by its use sought to exclude from the free list articles which were works of art but which were also, independent of their character of appealing to the emotions, incidentally, articles of utility, a good example of which is a screen upon which is a painting in oil. This view is borne out by a reading of the Summary of Tariff information of 1908, pages 623 and 624, where, after setting out at length the “Decisions and Interpretation” of the Board of General Appraisers, the following is found:
PAINTINGS
Comments and suggestions: In view of the efforts now being made to secure the admission as paintings at a low rate of duty of photographs, lithographs, calendars, etc., which have been passed over with a brush, it would seem advisable to reenact the proviso which was in the corresponding paragraph of the act of 1894, excluding paintings, so-called, made wholly or in’part by stenciling or other mechanical process. Other articles with incidental painting thereon should also be excluded.
Several suits are now pending in which the importers contend that lithographs painted over by hand' and calendars decorated by hand painting are entitled to entry as paintings.
The painted production at bar is not a thing which appeals to the emotions, having also, incidentally, an independent characteristic of utility. Owing to the nature of the article before us, if it9 utilitarian character is admitted, its lack of character as a work of art must seem obvious. We think the reasons assigned in the majority opinion for holding it to be an article of utility conclusively show that it is not a work of art, a “painting in oil” or “an original painting in oil” within the meaning of either paragraph. That a painting in oil which is a work of art must necessarily be one that appeals to the emotions is so well settled as to require no citation.
We quote a part of the majority opinion:
* * * and that a painting conceived and created solely for a utilitarian purpose, and which is not designed as a means in itself of exciting the emotions of the observer, does not come within the provision of paragraph 1704 * * *
If the above should be regarded as a true statement of the law to be applied in determining the classification of paintings and works of art, the phrase “nor under paragraph 1449” should be added to the *331same. If an article which is conceived and created solely for utilitarian purposes, and which is not designed as a means in itself for exciting the emotions of the observer, is to be excluded from paragraph 1704 because it is solely a work of utility, it should be excluded also from paragraph 1449 for the same reason, since, if it is solely utilitarian, it is not a work of art.
The instant importation may be the work of an artist, but that does not necessarily make it a work of art. Capable artists may exercise great skill in producing contributions to the industrial arts. It is not even suggested that the productions of the artist at bar appeal to the emotions of those who observe them. They are not of the character of works that are intended to excite the emotions. Such was not the intent of theartistwhen he made them and such was not the purpose of their importation or subsequent use, but, as stated in the majority opinion, they “were created as one of the steps in the production of a magazine, which is a commercial commodity. The purpose was to add to tbe mercan tile value of the magazine, and their creation had no other purpose,” and an examination of the same discloses, in our judgment, that they do not possess the characteristics which excite the emotions such as are found in a work of art.
If by them the emotions of anyone are to be excited or are intended to be excited, it would be those who behold the mechanical reproductions of the same on tbe partly printed pages of a magazine. They were not only designed solely for that purpose, but, as far as we can determine, they are fitted only for that purpose.
In the opinion, the description of the exhibit should not leave out the important fact that it is not in the ordinary form of a painting in oil as that term is generally understood. The exhibit before us is constructed somewhat in outline. The central portion of the same consists of two individuals and one or two prominent articles of furniture in a room, with the irregular edges of the furniture and room merging into the white color of the canvas, and is evidently so designed as that such white edges will merge into the color of the magazine page, containing part of a printed story. In other words, in its construction it is specifically designed for the magazine page and not for the uses prevailing generally for works of art.
We do not mean to suggest that an oil painting by an artist may not still be a work of art although intended by the artist to be reproduced and used only on a magazine page. The intent of the artist or theintentof theimporter could hardly be said to be conclusive as to the nature of the article, but if such intent of the artist finds expression in the production, as in the case at bar, which deprives it of its work of art character, it should not be classified for tariff purposes as a work of art.
*332The merchandise was classified by the collector under paragraph 1449. The importer made but one claim — that it was free of duty under paragraph 1704. It is clear to us that it is not classifiable under either paragraph. Since the importer must not only show the erroneous classification of the collector but point out and claim under the proper provision, the classification and assessment of the collector' should stand and the judgment of the court, for the reasons herein assigned, should be affirmed.