BENEDICT & WARNER v. UNITED STATES

BENEDICT & WARNER v. UNITED STATES. (Circuit Court, S. D. New York. November 11, 1904.) No. 3,421. Customs Duties—Classification—Rock Crystal Intaglios—Painted Precious Stones. In construing the provision in paragraph 435, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for “precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process,” in reference to intaglios incised in rock cry.stal (a precious stone), which have been attractively and skillfully painted, the value and salability of the articles being chiefly attributable to the painting, held, that the words “or other process” include such process of painting, and that such intaglios are dutiable under said provision, rather than as manufactures of rock crystal, not specially provided for, under paragraph 115 of said act, e. 11, § 1, Schedule B, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]. On Application for Review of a Decision of the Board of General Appraisers. The decision under consideration (G. A. 5,402, T. D. 24,614) affirmed the assessment of duty hy the collector of customs at the port of New York on merchandise imported by Benedict & Warner. Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for appellants. Charles Duane Baker, Asst. U. S. Atty. [MAJORITY — HAZEL, District Judge.] HAZEL, District Judge. The importation herein consists of rock crystal intaglios painted. Rock crystal is admittedly a precious stone, and, in the form as assessed for duty, is useful only for scarf pins or brooches. Duty was assessed at 50 per centum ad valorem, under paragraph 115 of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 159 HJ. S. Comp. St. 1901, p. 1636], as “manufactures of rock crystal.” The importers claim this liquidation and assessment to have been erroneous, and that a duty of 10 per centum ad valorem, under paragraph 435 (Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676]), as “precious stones advanced in value,” would have been proper and in accordance with the statute. The paragraph in question specifically refers to “precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process.” The Board of General Appraisers, in an exhaustive and apparently well-considered opinion, reached the conclusion that the words “or other process,” in paragraph 435, were restricted to processes of the same description, such as cutting, splitting, or cleaving. The government claims that the intaglio, representative of a head or figure incised in the rock crystal, was attractively, skillfully, and expensively painted, and that its value was chiefly attributable to the painting, which embellished and beautified its appearance and added to its salability. All this is unquestionably true. Nevertheless a fair interpretation of the words “or other process,” found in paragraph 435, includes the process of painting or coating, as applied to precious stones. It was not seriously denied on the argument that the principle enunciated in Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012, controlled the disposition of this controversy. In that case the importation consisted of shells of which the epidermis was removed, and which were then embellished and prepared for the market by cleaning with acid and grinding on an emery wheel to expose the pearly interior. They were generality sold for ornaments, and were also useful for buttons, handles of penknives, etc. The Eord’s Prayer was painted^ or superimposed on some. The court held that grinding and polishing the shells for the market did not advance them beyond the condition of shells. The language of the court upon this point applies here, and may be appropriately quoted: “We are of opinion that the shells in question here were not manufactured, and were not manufactures of shells, within the sense of the statute imposing a duty of 35 per centum upon such manufactures, but were shells not manufactured, and fell, under that designation, in the free list. They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character, or use from that of shell. The application of labor to an article, either by hand or mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff law.” This case apparently was not called to the attention of the Board of General Appraisers. Moreover, it is believed that paragraph 115 is not intended to refer to articles of this character. True, the broad language employed has reference to manufactures of rock crystal and other precious stones, but consideration of the more specific provision of paragraph 435 constrains me, though not without doubt, to hold that articles of the kind in question were not intended to be assessed for duty under that provision. The questions presented are not free from doubt. Such indicated state of mind, however, according to the highest authority, must be resolved in favor of the importer. Hartranft v. Wiegmann, supra. The decision of the Board of General Appraisers is reversed.