United States v. Columbo Co.

DISSENTING OPINION

Garrett, Judge:

I feel constrained to dissent in the instant case, notwithstanding the fact that I must recognize the nearness of its approach to the case of Frei Art Glass Co. v. United States, 15 Ct. Cust. Appls. 132, T.D. 42214, upon the doctrine of which the majority rest their decision. I regard it as being readily distinguishable, upon the proven facts, from the earlier case of Petry Co. v. United States, 11 Ct. Cust. Appls. 525, T.D. 39666, also cited in the majority opinion.

I think it obvious from reading the majority and specially concurring opinions in the latter case that the evidence in that record was not sufficient to distinguish the mosaic there involved from the mosaics which had been involved in the various Treasury decisions therein cited. Hence it was evidently there felt by the court that the doctrine of legislative adoption of administrative practice should be applied.

That this court there confined its application of that doctrine to that particular case and arrived at the conclusion there reached because of the failure of the proofs to establish that the mosaic involved met the statutory requirements as to works of art for tariff purposes seems clear to me from the concluding paragraph of the majority opinion which is quoted in the opinion of the majority in the instant case.

I feel that the court there had in mind the possibility of importations such as that now before us, and recognized the fact that evidence might be presented, such as has here been presented, which would lead to a conclusion different from that there reached.

It is established here beyond peradventure, by uncontradicted testimony, that the mosaic involved is itself, in truth, a work of art and that it is a faithful mosaic copy of a painting in oil by one of the world’s master artists. The production of the copy required three years of intensive work under the direction and supervision of a recognized artist. I find it difficult to reconcile myself to the holding that its classification should be governed by an administrative *186practice, approved by judicial decisions predicated in each instance upon the particular facts shown in the particular case, which began with the classification of mosaics used principally for wall decorations, pavements, mantels, and the like.

Frankly, this seems to me to do violence to the generally known and historic disposition of the Congress relative to the promotion of cultural and esthetic tastes, and the developing of the finer spiritual emotions and impulses.

The testimony in this case relative to the character of this mosaic, and to the genuinely artistic character of the painting, of which I think it should, in the contemplation of the statute, be regarded as a copy, seems to me to be clearer and more definite than was the testimony relative to the somewhat analogous articles involved in the Frei Art Glass Co. case, supra, and, in any event, upon this record, I feel, most earnestly, that the judgment of the United States Customs Court should be affirmed.