DISSENTING OPINION
Bland, Judge:I must respectfully dissent from the decision of the majority, which is obviously the result of much sincere and earnest work and research in a field made difficult by confusing statements made, and conclusions arrived at, by this court in the past, some of which statements and conclusions have resulted in decisions heretofore handed down, but not controlling here, which have led this court, I think, into an anomalous position on the subject of art.
The facts stated in the majority opinion, I think, inadvertently fail to fully state all the record facts which tend to support the importer’s position in this case, but space does not permit here a detailed statement of the evidence. I will content myself by saying that the record shows that the customs officials passed the importation as articles of blown, decorated, or colored glass, dutiable in part at 60 per centum and in part at 55 per centum under the decorated-glass paragraphs of the two tariff acts involved, and gave as the reason for doing so, under the 1930 act, the decision of this court in the case of *10Frei Art Glass Co. v. United States, 15 Ct. Cust. Appls. 132, T.D. 42214, which case held mosaic paintings of high artistic merit not to be dutiable as works of art under paragraph 1449, Tariff Act of 1922, for the reason that they were of glass. Obviously, the customs officials in the instant case believed that the ruling as to glass mosaics would be followed as to glass vases, no matter how made, and the Government, in defending thé position of the customs officials in this court, relies not upon the fact that the imported articles in this instance were not shown by the record to be works of art, in fact, but; that, being of glass, they were not works of art in a tariff sense, and that an examination of the exhibits discloses that they are neither beautiful nor artistic.
The proof in this case is all one way — three highly competent witnesses, whose qualifications are not fully stated by the majority, overwhelmingly sustained the importer’s position that the articles at bar are works of art of a very high order of artistic merit; that they are not the work of an artisan; are not blown or mechanically produced but are made with wooden spatulas — “the only instrument” used; and are not produced in this country. Two of the vases are entered for duty at a value of 2,400 francs. These importantfacts of record stand unrefuted by any witness, but, in my opinion, they have been ignored by the majority in such a way as to form a precedent, the consequences of which may not be fully apparent now.
After reading the majority opinion over many times, I find it very difficult to determine the exact basis of the decision, and it is difficult to write a satisfactory dissenting opinion without being able to definitely point out the reasons assigned by the majority for bringing it to the conclusion reached, which I respectfully characterize as erroneous, as I shall attempt to show more particularly.
First. Is the result based on the fact that the articles are of glass? It would hardly be admitted by any of my associates forming the majority that this was the basis of its decision, although we find in the opinion the following; “* * * why should other more artistic and beautiful creations of the glass blower [italics mine] not be likewise removed?” Other places in the opinion, the glass character of the articles seems to be somewhat emphasized.
Second. Does the basis of the decision of the majority rest upon the fact that there is no artistic merit in the articles before us, notwithstanding the complete record which overwhelmingly shows that the articles are “decidedly works of art”? I am inclined to think that if there is any controlling and definitely assigned reason which brought the majority to its conclusion, it is that the articles lack artistic merit, when tested by the knowledge of the majority as to what is or is not artistic, because I find in the opinion the following:
Observers of the imported articles will doubtless differ as to their artistic quality. However, a view of them results in the conclusion that they lack much *11of the aesthetic appeal which is ordinarily associated vnih works of the fine arts. Laying aside the mechanical dexterity which is used by the maker of these articles in modeling and shaping a molten mass of glass, and eliminating the secret processes which he has invented, of adding color and air bubbles, we think it may be fairly said that these articles have no greater appeal to the sense of the beautiful and artistic than do other glass articles made by skilled artisans. (Italics mine.)
Toward the end of the opinion is the following:
On the record before us, the best that can be said of these imported objects is that Navarre and some of his coworkers have discovered a novel method of fabricating glass vessels. Because of their method of manufacture and unique appearance, they -appeal to the taste of some. However, the art which produces them is decorative, and not such as has always been hold to be the practice of the free fine arts.
Third. Is it possible that the majority has in mind the fact that these vases are articles of utility merely because they are vases and necessarily have top openings? See United States v. Royal Copenhagen Porcelain, Inc., 17 C.C.P.A. (Customs) 464, T.D. 43929, where vases were held to be paintings. In the opinion of the majority in the instant case is the following paragraph:
There is no evidence in the record that these objects are not articles of utility.
Surely, this is not one of the controlling reasons of the decision, because those constituting the majority have sufficient courage to have definitely stated this as a reason if they felt fully justified in that conclusion. If it is not a reason for holding the articles at bar not works of art, the expression should not have found its way into the opinion. Suffice it to say that the decisions of this court would preclude the conclusion that vases, such as these, the inventoried value of two of which was as much as 2,400 French francs, were utilitarian in character. In United States v. Baumgarten & Co., 2 Ct. Cust. Appls. 321, T.D. 32052, the court said:
The invoice value of the article is $453, and it is apparent that it has no utilitarian value at all proportionate to this cost.
Fourth. The decision of the majority seems to rest partly upon the fact that the testimony and the conclusion of the court below would indicate that the vases were thought to be sculptures, and that under United States v. Olivotti & Co., 7 Ct. Cust. Appls. 46, T.D. 36309, they cannot be so regarded.
Under three of the four subdivisions above indicated, to wit, articles of glass, articles lacldng artistic merit, and sculptures, I now propose to point out that under either or all of these assumed grounds of decision the result arrived at is wholly unwarranted. I have sufficiently discussed the third subdivision — utility.
The Frei Art Glass Co. case, supra, was the anomalous result of giving too much weight to the letter of general expressions used in decisions, which led to a drifting away from controlling principles. In *12that case, certain language used in the Olivotti case, supra, written by Judge Smith, was, I respectfully submit, misinterpreted and erroneously applied. In the Frei Art Glass Co. case, Judge Smith, the author of the Olivotti opinion, specially repudiated the construction which later led this court to thé erroneous and wholly unjustifiable conclusion that a beautiful glass mosaic, even though a work of art possessing artistic merit, was not to be regarded as a work of art within the dutiable provisions of the paragraph because it was a glass mosaic or a painting in glass, and that Congress did not intend that such a work of art in glass should be admitted at the lower art rate, evidently because of its desire to protect the glass workers of this country. See also the majority and concurring opinion in Petry Co. v. United States, 11 Ct. Cust. Appls. 525, T.D. 39666. Later, Congress having made no substantial change in the dutiable works of art provision, this court held that under the doctrine of legislative adoption of j udicial interpretation, mosaics were not works of art for tariff purposes, and I concurred in the conclusion. Probably even then we gave too much weight to a rule of interpretation in view of the fact that owing to the peculiar subject matter involved, art, Congress is rarely urged to make needful changes. But, at any rate, there was no legislative adoption rule that could apply to the Henri Navarre vases at bar, and the majority has not attempted to apply such a rule.
After exhaustive research, I unqualifiedly state that I lenow of no authority or any court decision, except the line of decisions above suggested, that holds that an artistic article created by an artist, in glass, may not be regarded as a work of art under the dutiable provisions of the acts under consideration. Indeed, under the weight of authority, such an article may, possibly, be a work of art under the free provisions of the tariff acts. I am not sure, however, that this is true, and the issue is not presented here. Both the free and the dutiable provisions were intended to encourage art and art education in this country. The vases at bar are originals. They are the works of a great artist. They are modeled with spatulas, as is clay or wax. They have the color, lines, and general appearance which give them such artistic character as to cause three competent judges of art to testify to their being works of art, which testimony stands undenied. So much for the glass character of the article.
As above indicated, it seems that the majority holds that the arti-cíes do not possess sufficient artistic merit to warrant their being held dutiable under the works of art provisions under consideration, based wholly upon the lack of aesthetic enjoyment which the individual judges constituting the majority receive from looking at the articles. In customs jurisprudence, courts have the right to ignore expert testimony and the testimony of those best informed on the subject matter, if the exhibit in evidence clearly and unquestionably *13refutes such, testimony, but the case at bar is no place for the application of such a rule, and I maintain that the application made of it in this case is wholly unprecedented, and is clearly unjustifiable, in view of the complete, convincing, and undisputed evidence in the case. Moreover, in my view, an examination of the articles at bar supports rather than refutes the testimony. It. is in this respect that I think the decision of the majority does the greatest harm. Is it possible that a bare majority of the judges-of this court may ignore the testimony of those most advised on the question, reverse the finding of the trial court, and set up its own standards as to what constitutes artistic merit, and thus, in my judgment, thwart the clearly indicated purpose of legislation with respect to art? I do not want to assume such a responsibility and will not do so. I freely admit, and I think my very sincere associates would do the same, that I know no more about artistic merit than does the average layman, and what might appeal to me as being an artistic creation of great merit, if appearance alone controlled, might not meet the test at all, and vice versa.
One statement of the majority opinion is to the effect that by reason of “the unique appearance” of the articles at bar “they appeal to the taste of some.” I presume this refers to such persons as the three exceptionally well qualified witnesses who testified as to the artistic merit of the articles at bar, and as to the high standing of Henri Navarre, their creator. I admit that the appearances of the vases are unique, but a great sculptor made them, and the record indisputably credits them with possessing decided artistic merit. I dare not attribute the finding of artistic merit in this kind of art to bizarre or distorted tastes of artists or art admirers. All genius, and especially that which relates to art and music may, as is frequently suggested, possess a certain degree of unbalanced mentality, but we cannot condemn art for tariff purposes on account of this fact.
The work of many famous modern artists may not fully satisfy all the longing I. may have for the aesthetic qualities in artistic objects, but tariff acts are made for the future and the present, and we should be controlled in our conclusions not by any antiquated notions we might have, or by what pleases us, but our inquiry should be limited to what is the importation on the date imported, as disclosed in the opinion of those most learned on the subject.
The opinion of the majority as a whole would seem to imply, if not definitely hold, that sculpture must portray natural objects in their true proportions (from quotation in Olivotti -case). If this be true in sculpture, it would be equally true in painting. If the same adherence to the letter of a decision is hereafter followed by this court as has been done with respect to mosaics, as is above pointed out, it is easy to see where following this principle would result in no impressionistic art or allegorical art, either paintings or sculp*14tures, being regarded by the courts as works of art. It is a matter of common knowledge that the greatest present-day interest in art and the greatest commercial activity in connection with art involves modern art which includes impressionism and post-impressionism. See “post-impressionism”, Webster’s New International Dictionary (1932) under “new words.” Also see Henry R. Poole’s “Modern Art, etc.”, which is a criticism of modern art' tendencies, and Sheldon Choney’s “Primer of Modern Art” which defends present day tendencies.
Modern suggestive art does not portray things in their natural form, but merely portrays objects in such form, sometimes distorted or incomplete, as will be suggestive of the idea which is to be conveyed. Modern classical music now encourages the occasional intentional use of discords. These innovations by modern artists seem to be in harmony with the tendency of the times, and it is the kind of art which possesses such elements of eccentricity that holds the stage today. It has its friends and its enemies, but the enemies of suggestive sculpture and painting all agree that it is art, has artistic merit, when done by a good artist, but contend that it is not as good from an artistic standpoint as realistic art.
Now, did Congress in the Tariff Acts of 1922 and 1930 contemplate that all art which does not portray in the natural form was not needed in this country for the purpose of art education, and that it should not be regarded as art for tariff purposes? Is it the holding of the majority that the works of Brancusi, which include the sculpture known as the “Portrait of Madame Pogany ” (see Encyclopaedia Britannica, vol. 20, fig. 3 of pi. X, following p. 206) or his “Bird in Space” (fig. 10, pi. XIII, opposite p. 231), or the works of Picasso, Matisse, Biddle, and all the modern art of Russia, Spain, and elsewhere, are to be denied an art classification when imported into this country, because we, as judges of the court, may not like certain kinds of modern art, and can get real enjoyment only from the more conservative realistic art?
It must be remembered that when the words “representing such objects in their true proportions” found their way into the Olivotti case, which words, in turn, were taken from authorities of earlier date, impressionistic or suggestive art was not troubling our customs officials as it is in more recent times.
The “Bird in Space”, or the same or a similar article styled the “Bird in Flight”, by Brancusi, was the subject matter of litigation in the United States Customs Court in Brancusi v. United States, T.D. 43063, 54 Treas. Dec. 428. From the decision of the trial court in that case, no appeal was taken. Judge Waite there called attention to the tendency of modern art, quoted the definition of “sculpture” in the Olivotti case, pointed out that the “Bird in Flight” did not measure up to the standard of the definition, but held, nevertheless, thatitwrs a *15sculpture and free of duty. The United States Tariff Commission in Summary of Tariff Information, 1929, volume 2, page 2668, called the attention of Congress to this decision, quoted the Olivotti definition, and pointed out Judge Waite’s decision on modern art. Congress made no change in the Tariff Act of 1930. The subject of legislative adoption of judicial interpretation in this instance might also have been given some consideration by the majority.
If it is the intention of the majority to definitely hold that the work of a noted sculptor, whose conception finds expression in what we might regard as a somewhat distorted form, or an allegorical form, or a suggestive form, then it is possible that some- of the articles at bar might be denied classification as works of art. Exhibit 3 does not fall in this class. It has leaves and stems plainly sculptored on the sides from top to bottom. Exhibits 1 and 2 have what are probably suggestive stems and branches. Exhibit C has the body, wings, neck, head, bill, and eyes of some land of fowl in an interesting pose. Its likeness to any particular fowl is only in its suggestion, but it is far more suggestive of a fowl than is the “Bird in Flight” suggestive'of a bird, and comes nearer representing the natural proportions of the object than do most examples of impressionistic art. All the other articles contain elevated ornamentations 'which may be suggestive of natural objects. The proof in the record shows them all to be works of art.
The majority concludes that because the articles were made by Henri Navarre, a “very famous French sculptor”, and because the witnesses referred to his sculpturing in glass, and by reason of statements in the opinion of the court below, the witnesses and the court regarded the vases as a work of art solely because they were sculpture. I have not the slightest doubt that they are sculpture, not only in a broad sense, but in a strict tariff sense (if there is a distinction to be made), but surely the majority does not base its opinion upon the fact that they must be sculpture to be works of art within the provisions of the paragraphs in the two acts involved. The paragraphs provide for works of art, irrespective of sculpture and painting, and this court has held definitely and uniformly that the language “works of art” is not limited by the phrases which follow and which refer to painting, sculpture, etc., and that a work of art may be dutiable under that provision without being any of the things named thereafter. Petry Co. v. United States, supra; United States v. John Wanamaker, 19 C.C.P.A. (Customs) 229, T.D. 45336. The importer here contends only that they are works of art. A tapestry may be a work of art, although it is neither a sculpture nor painting. The articles before us may be works of art because they are made by an artist, possess artistic merit, and cannot be produced by an artisan, and this is true even though it was held that they do not meet minor requirements of *16any definite definition of sculpture for tariff-duty purposes. In other words, the process of making them might make them works of art without making them sculptures in the narrow sense.
But, eren if we were justified in holding that the vases at bar are only works of art, if they are sculptures in a tariff sense (and I am not even admitting of the possibility of the correctness of this assumption), the majority nevertheless would have no ground or basis for the holding that they are not works of art. Sculpture may be in the round or in the relief. See United States v. Baumgarten & Co., supra; Webster’s New International Dictionary (1932); Encyclopaedia Britannica. If it is in the round or solid form, it has three dimensions— length, breadth, and thickness. It is in relief when only the length and breadth are expressed and the depth is abridged. Therefore, a given slab of marble or glass, terra cotta, etc., upon which is sculptured (and I use that word advisedly) figures not shown in their true depth, is a sculpture. This fact was recognized in the Olivotti case, relied upon by the majority, where Judge Smith said:
* * * Sculpture as an art is that branch of the free fine arts which chisels or carves out of stone or other solid material or models in clay or other plastic substance for subsequent reproduction by carving or casting, imitations of natural objects, chiefly the human form, and represents such objects in their true proportions of length, breadth, and thickness, or of length and breadth only. * * * (Italics mine.)
True enough, the Olivotti case, following certain definitions of sculpture set out in Lazarus v. United States, 2 Ct. Cust. Appls. 508, T.D. 32247, which decision involved a paragraph wholly and completely unlike the one involved here, seems to imply that not only must a sculptured article represent a natural object, but that the article in its entirety should represent the natural object as is true in statuary. If that thought were applied to the vases at bar, it would mean that each vase as a whole must be in the shape of a natural object in order to be sculpture. If so, this court was wrong in United States v. Baumgarten, supra, and it was also wrong in holding that a vase, with a painting in mineral on it, was a painting in United States v. Royal Copenhagen Porcelain, Inc., supra. In Stern v. United States, 3 Ct. Cust. Appls. 124, T.D. 32381, this court held dutiable as sculpture (in relief) vases, upon which figures of natural objects had been sculptured. See also United States v. Sterling Bronze Co., 4 Ct. Cust. Appls. 389, T.D. 33835, where ornamental marble columns were held to be sculpture.
Obviously, the sculptured figures on the vases at bar were, by the majority, placed in the same category as the “carvings suggestive of leaves” on the tapering columns of the font in the Olivotti case. In that case it was held that the decorative figures on the carved marble columns were only decorations. It is true, as above stated, that in the Olivotti case there is language used which would seem to imply that the article as a whole, and not the sculpturings thereon, must represent *17natural objects. But, since the opinion holds that the carvings were only decorations, it is not necessary to interpret the opinion as being a holding which would be entirely at variance with all decided cases. If it is contrary to all decided cases, in this respect, it should not be followed. To hold that the. article itself must, as a whole, represent a natural object in its natural proportions, would bo to declare that there could be no sculpture on any other object, and, therefore, sculpturing in relief for tariff duty purposes would be outlawed.
Now, let us assume, however, that in order to be sculpture (bear in mind that it is not necessary for this to be sculpture to be a work of art under the paragraphs involved), the article must contain the representation of a natural object, such- as human beings, animals, plant life, etc. As far as I am able to observe, each and every one of the articles at bar fully complies with this requirement. The green shaded vases and certain others of the importation may portray leaves and branches only in an impressionistic way or by a mere suggestion of them, but they are certainly there. Moreover, Exhibit C, as stated in the majority opinion, appears to be the representation of some kind of bird. The neck, head, eyes, bill, body, wings are all portrayed in a somewhat suggestive way. This sculptured article as a whole represents an animate natural object. Exhibit 3 has well defined leaves and stems, in their natural shape, covering a large portion of two sides of the vessel and each of the other articles has raised portions which are probably suggestive of some natural object. In fact, it is stated in the majority opinion that Exhibit 3 has the representation of a compound leaf on each side. These features in the articles, in my opinion, are not minor or inconsequential ones in giving character to the articles.
Now, to recapitulate, it may be said that the majority, without assigning sufficient reasons, and without assigning any reasons very definitely, holds that the original works of the great sculptor, Henri Navarre, are not works of art, but are the work of the glass decorator, notwithstanding the fact that there is a complete agreement among artists that they possess great artistic merit and could not have been produced by an artisan.
The erroneous position which this court originally took on the subject of glass art was prompted, as is shown by the decisions, by the belief that Congress desired to protect the American glassworker and not the American artist. What earthly protection could a high duty on these highly artistic articles give to the glassmaker or glassblower in the glass factories of the United States? . No one here has done or can do this kind of work. It is exactly the character of importation that Congress would seek to favor for the purpose of art education. It is pointed out in the majority opinion that in United States v. Calumbo Co., 21 C.C.P.A. (Customs) 177, T.D. 46510, certiorari was *18denied, by tbe Supreme Court. Tbe denial of a writ of certiorari imports no expression of opinion oñ the merits of tbe case. United States v. Carver, 260 U.S. 482, 490. Unfortunately tbe Supreme Court passes upon but a very few customs cases and those must be regarded as matters of grave importance even to cause a thorough consideration of the subject by Congress. Occasionally the Supreme Court does take a case of this character and if it had taken the Columbo Co. case, I feel sure that the position of this court would not have been approved, unless it was approved upon the doctrine of legislative adoption of judicial interpretation, which is not in tills case.
It is my view that every article at bar is a work of art and should be classified as claimed by the importer, and that that portion of the judgment of the court below which held certain articles to be works of art should be affirmed, and that the court's action in approving the collector’s classification of a portion of the articles should be reversed.