American Colortype Co. v. United States

Martin, Judge,

delivered the opinion of the court:

The merchandise in this case consists of pictures of female models exhibiting stylish designs of women’s apparel. The pictures are in colors, are upon heavy paper or cardboard, and measure about 1J feet by 2 feet each. They range in value from $50 to $150 each, approximately, and serve as originals from which thousands of copies are produced in similar colors by a plate process. These become inserts in dress catalogues to show the styles of ladies’ gowns, and sometimes they appear also in magazines.

The articles were classified by the collector as manufactures of paper, and as such they were assessed with duty at the rate of 25 per cent ad valorem under paragraph 332 of the tariff act of 1913, which reads as follows:

332. Papers or cardboard, cut, die cut, or stamped into designs or shapes, such as initials, monograms, lace, borders, or other forms, and all post cards, not including *213American views, plain, decorated, embossed, or printed, except by lithographic process, and all papers and manufactures of paper or of which paper is the component material of chief value, not specially provided for in this section, 25 per centum ad valorem.

The importers protested against the assessment, claiming for the articles a classification as “original drawings and sketches in pen and ink or pencil and water colors,” and as such entitled to free entry under paragraph 652 of the act, a copy of which, follows, with parts in italics:

652. Original paintings in oil, mineral, water, or other colors, pastels, original draw--ings and sketches in -pen and ink or pencil and water colors, artists’ proof etchings unbound! and engravings and woodcuts unbound, original sculptures or statuary, including not more than two replicas or reproductions of the same; but the terms “sculptures” and “statuary” as used in this paragraph shall be understood to include professional productions of sculptors only, whether in round or in relief, in bronze, marble, stone, terra cotta, ivory, wood, or metal, or whether cut, carved, or otherwise wrought by hand from the solid block or mass of marble, stone, or alabaster, or from metal, or cast in bronze or other metal or substance, or from wax or plaster, made as the professional productions of sculptors only; and the words “painting” and “sculpture” and “statuary ” as used in this paragraph shall not be understood to include any articles of utility, nor such as are made wholly or in part by stenciling or any other mechanical process; and the words “etchings,” “engravings,” and “woodcuts” as used in this paragraph shall be understood to include only such as are printed by hand from plates or blocks etched or engraved with hand tools and not such as are printed from plates or blocks etched or engraved by photochemical or other mechanical processes

The issue thus raised, was submitted upon exhibits and oral testimony to the Board of General Appraisers, and the.protest was overruled. The importéis now appeal from,this decision.

The present question therefore is whether the pictures in hand are properly classifiable as “original drawings and sketches in pen and ink or pencil and water colors,” and if so whether they are free of duty as such under paragraph 652, supra.

The testimony is rather meager, but it fairly estaolishes the fact that these pictures are produced by artists who woru with the assistance or under the direction of a master artist, and that the pictures aie first drawn or sketched upon the paper in pen and ink or pencil, and then colored in water colors.

It will be observed that the paragraph in question contains two' enumerations which are nearly allied with one another, both of which must-be considered in the present case. The first includes-“original paintings in * * * water, or other colors;” the second covers “original drawings and sketches in pen and ink or pencil and water colors.” Both of these classes include pictures which are colored by means of water colors, and in this particular the present articles respond alike to both descriptions. But the second enumeration contains a limitation not found in the first, which is that it shall apply only to such pictures as are drawn or sketched in pen and ink or pencil, even though they be colored in water colors. The *214present articles according to the testimony distinctly respond to these requirements of the second classification. They are first drawn or sketched in pen and ink or pencil, and are then colored with water colors as desciibed. They are also original pictures, even though several persons collaborated in their production. A picture which is thus produced as a new creation is none the less original because of the fact that it results from the combined concurrent efforts of several artists.

We conclude therefore that the present articles are within the enumeration of “original drawings and sketches in pen and ink or pencil and water colors,” contained in the paragraph in question.

It is contended by the Government that notwithstanding this conclusion the protest should nevertheless be overruled because of the obvious fact that these pictures are utilitarian in character and purpose. In support of this contention the Government- cites the proviso which appears in the paragraph as follows: “And the words 'painting’ and ‘sculpture’ and ‘statuary’ as used in this paragraph shall not be understood to include any articles of utility.”

In answer to this contention, however, it may be observed that the nomenclature of paragraph 652, supra, distinguishes between the terms “painting,” “sculpture,” “statuary,” and “drawings and sketches,” all of which appear in the paragraph as primary terms of classification. And that the proviso in question specifically applies only to “paiiiting,” “sculpture,” and “statuary,” and contains no reference to “sketches and drawings.” The entire omission of the latter enumeration from the proviso is significant in the light of the context of a legislative intention to exempt such articles as these from its force and effect.

In this view of the case we hold the present articles to be entitled to free entry under paragraph 652, supra, and the decision of the board overruling the protest is therefore reversed.