Joseph Poli Co. v. United States

DISSENTING OPINION

Johnson, Judge:

In this case, the principal claim is that certain imported articles, such as altar parts, a pulpit, statues, stations of the cross, and a communion rail and steps, are entitled to free entry under paragraph 1774 of the Tariff Act of 1930 as articles imported for presentation (without charge) to, and for the use of, corporations organized and operated exclusively for religious purposes. One item is claimed to be entitled to free entry under paragraph 1807 as an original sculpture. The decision of my colleagues overrules the claims as to most of the articles involved, but has allowed free entry under paragraph 1774 as to the following items:

Wood altars_ Entry No. 0112
Statue of St. Joseph_ Entry No. 244
Statue of Blessed Virgin_ Entry No. 244
Marble altar and pulpit — ._Entry No. 039
Marble group of Pieta_Entry N o. 72

*337In my view, however, the evidence is insufficient to sustain the claim as to any of the imported articles.

The pertinent paragraph of the tariff act, as it appeared prior to its amendment (which is not applicable to the instant merchandise), provided:

Par. 1774. Altars, pulpits, communion tables, baptismal fonts, shrines, or parts of any of the foregoing, and statuary (except casts of plaster of Paris, or of compositions of paper or papier-máché), imported in good faith for presentation (without charge) to, and for the use of, any corporation or association organized and operated exclusively for religious purposes.

The statute was construed in United States v. Dr. Oidtmann Studios, Inc., 31 C. C. P. A. (Customs) 116, C. A. D. 260, wherein the court said (p. 123):

* * * Congress in clear and unambiguous language provided in paragraph 1774 that to come within its provisions the articles therein named must have been imported “in good faith for presentation (without charge)” to a religious organization. This language clearly requires that a donor must at the time of importation have such relationship to the imported articles, either directly or by his agent, that he could exercise control over the articles, for without such control they could not be presented by him without charge to a religious organization. [Italics supplied.]

In that case, there was a contract between Dr. Oidtmann Studios and the congregation of the St. Louis Cathedral for the purchase and installation of the structural parts of a main altar and two side altars. There was in evidence a letter signed by Father Anderson presenting the altars to the cathedral. According to Father Anderson’s testimony, he was asked to make a donation and agreed to do so, provided a tablet were put up in honor of Bishop Laval. He donated the money, with which the cathedral paid the studios. The court held that Father Anderson had made a donation of money, not altars; that he had never had title to, possession of, nor dominion over the imported articles and could not have made a presentation of them to the cathedral without charge.

Free entry was allowed in the case of Don Bernardo Hammerstein v. United States, 27 Cust. Ct. 147, C. D. 1360, where it appeared that the donor authorized the pastor of the church to act for him; conferences were had between the pastor and the donor every week; the donor passed upon the designs; the pastor received his approval before proceeding with each step; the money was not turned over to the pastor to pay for the articles until the work was well advanced.

In a more recent case, Westfeldt Brothers v. United States, 36 Cust. Ct. 112, C. D. 1760, free entry was not allowed where it appeared that the contract of purchase of the articles was made by the bishop and could not have been canceled without his consent; payment was made upon completion of the work to his satisfaction; while the chancellor had been appointed agent of the donors, his only authority was to collect funds and pay for the work; neither the donors nor the chancellor had title to, possession of, nor dominion over the imported articles.

The articles covered by entry No. 0112 consist of wood altars, imported from Italy on or about January 6, 1948. Henry Peter Poli, an architect and a partner in the firm of Joseph Poli Company, testified that the transaction originated in that the mother superior of Our Lady of the Sacred Heart Convent, Coraopolis, Pa., had a painting which she wished placed in a shrine. He said that “she had a donor who would furnish the funds for carrying out this transaction” [italics supplied] and that she asked the witness to make a drawing for the shrine. He stated that several conferences were had, at which time he even met the donors, Mr. and Mrs. Kolski. Other than Coraopolis, he did not know their address. *338The drawings were approved in a conference; at which the mother superior and the donors were present, and Poli sent to Italy for the articles. Mr. Poli said the Kolskis suggested changes in the drawings, but he did not state what they were nor whether or not they were made. In a letter to the mother superior, dated November 21, 1947, signed by Mr. and Mrs. Kolski and by the ladies auxiliary by Mrs. F. Biedzinslca, president, it is stated that the undersigned take pleasure in presenting to the convent the altar and shrine, “which we have asked the Joseph Poli Company to import from Italy.” In a letter from said company to the convent, dated December 3, 1947, it is stated that the company agrees to furnish and install the altar and frame for the shrine, “the imported portions of which are being donated by the ladies auxiliary and by Mr. and Mrs. Y. C. Kolski.” Mr. Poli testified that he received his authority from the convent and that the convent paid the contract price of $2,100. At a conference at which the Kolskis were present, they said “they would stand $2,000 of it.”

The evidence is insufficient to establish that the Kolskis ever had control over the articles, or even that they had final approval of the designs. The mother superior engaged Poli and had him submit drawings. There is no evidence that the Kolskis selected him. He met them at the conferences, and they made some suggestions, but there is nothing to show that their suggestions were adopted. There is no evidence that any representative of the ladies auxiliary was present at any of the conferences or had anything to do with the designs or the articles themselves. Apparently, all that that organization did was to donate a sum of money.

In my view, this evidence does not meet the requirements of the statute. It establishes no more than that the donors gave the money and that two of them, Mr. and Mrs. Kolski, knew what was being done with it. The only evidence which even tends to indicate that the donors had anything to do with the importation of the merchandise is the letter of presentation, which refers to the altar and shrine, “which we have asked the Joseph Poli Company to import from Italy.” This letter has little or no value as evidence that the donors imported the merchandise. It is to be noted that similar letters are in evidence as to some of the other imported articles and that the word “we” is used even where there is only one donor. Evidently, they were all prepared by the same person and given to the donors for signature.

The Joseph Poli Company was selected for the transaction by the mother superior; its agreement was with the convent; and it was paid by the convent. There is no evidence that it was paid by the donors, either for the merchandise or for acting as their agent in importing it. The witness, a partner in the company, did not even know the address of the principal donors. Under these circumstances, and for the purpose of proving agency, insofar as it affects a third party, the statement in the letter of presentation does not establish that the company was, in fact, acting as agent of the donors in importing the merchandise. Eidlitz & Son (Inc.), as Agent v. United States, 12 Ct. Cust. Appls. 56, T. D. 39998.

The evidence herein does not support the claim that the donors imported the articles for presentation to the convent or that they ever had title to, possession of, or dominion over such articles.

As to the statues of St. Joseph and the Immaculate Conception in entry No. 244, there is in evidence a letter to the chaplain of St. Mary’s Convent, Pittsburgh, signed by Elizabeth Harris Moore, stating that the undersigned takes pleasure in presenting to the chapel of the convent the articles “which we [sfc] have asked the Joseph Poli Company to import from Italy.” According to Mr. *339Poli’s testimony, be made an agreement with the convent for $900 for the two statues that were installed in the chapel. At the direction of the convent, he sent the bill to Mrs. Moore, who forwarded her check to Mother Francella at the convent. The convent sent its check to Poli. The type of statue that was purchased was designated by the mother superior, to whom photographs were shown. The witness stated that “Mrs. Moore was in on it,” but that the mother superior picked the statue. Nameplates were placed under these statues in the name of Mr. and Mrs. Prank J. Harris, the parents of Mrs. Moore.

The items involved in entry No. 039 were a small altar and pulpit for St. Peter’s Church in Pittsburgh. There is in evidence a letter, dated June 24, 1948, addressed to the pastor of the church, signed by Sully or Sally Nesta, Mrs. A. Marinpietre and Mrs. P. Marinpietre, stating that the undersigned take pleasure in presenting the marble altar, “which we have asked the Joseph Poli Company to import from Italy.” A similar letter signed by John Nesta refers to the marble pulpit. Mr. Poli testified that he met the Nestas and the Marinpietres in the presence of Father Costa and discussed with them “the places of the installations of the statues [sic].” He said that the pastor had the “final disposition rights” and that he (the pastor) paid for the work in behalf of the church.

One of the items in entry No. 72 was a marble statue, called Pieta. There was received in evidence a letter, sworn to August 3, 1948, signed by Mrs. M. L. Raggio and John and Pellegrino Raggio, stating that they take pleasure in presenting to St. Peter’s Church, one marble Pieta “which we have asked the Joseph Poli Company to import from Italy.” Mr. Poli testified that he had met the Raggios in the presence of Father Costa. He stated:

A. This particular one I remember, because we had a question as to where to place this statue of the Pieta, and they offered their idea. The father offered his and I offered mine, and we decided where it now stands.
* * * * * * *
R. X Q. In those situations who is the one whose opinion prevails, or in other words, who has the last say? — -A. Well, you are trying to please the Pastor.
R. X Q. Isn’t the Pastor to decide where it goes after listening to everything?— A. Yes.

The witness also testified that the donors of the money asked that plaques be placed on the statue, stating “gift of.” He stated that the money was paid to him “by the church, by the pastor.” He did not know whether the church received it from the donors or not.

In my view, none of the evidence summarized above is sufficient to establish that the donors had any control over the articles or that they, in fact, imported them for presentation to the religious institutions involved. They made a gift of money, not the articles. They evidently had knowledge of what was being done with the funds and may have made some suggestions in regard to the articles or their installation, but they did not have title to, possession of, nor dominion over the imported articles.

For the reasons stated, the protest herein should be overruled as to the above five articles, as well as the other imported articles as to which the majority opinion has denied free entry.