It is well known that while the photographic art may produce vivid and realistic pictures of articles placed before the camera, yet so much depends upon position, light, shadow, skill of photographers, and perfection of the apparatus in each case that it can hardly be said as a matter of law that photographs like these, which show but one view or presentation of the object, furnish a sufficient representation thereof to enable one, however skilled as a sculptor or as a judge of sculpture, to declare from an inspection of a given photograph that it is the production of a professional sculptor only. A photograph taken with the camera in a different position, showing a different view of the article, might reveal evidence that on the whole the artisan and not the professional sculptor produced the original. Opinion evidence of this kind, if it is admissible on such an issue as we have here, which, is by no means conceded, must in the very nature of things be uncertain, and should be carefully scrutinized, notwithstanding the witness himself may have no doubt as to the correctness of his opinion. If such evidence is admissible its office. is only to aid the triers to form their opinion upon the very question as to which the witness is permitted to express the opinion which he entertains. It is not of the class of testimony given by the person who produced the article. Such evidence if credible and not rebutted might, if disregarded by the triers, be a ground for and demand a reversal. No reason appears in this case why such evidence was not offered, nor does it appear why typical exhibits were not produced. As to the low fountain, concerning which Mr. Garnsey testified that one Lenzi, a professional sculptor, was the sculptor thereof, no different conclusion can be reached than as to the other articles. The witness did not undertake to say that of his own knowledge he he knew whether the sculptor did any more than to make the model of the fountain; that is, he could not say whether after the model thereof was made, the work was or was not executed by an artisan rather than by a sculptor, or whether the sculptor supervised the work if the artisan did it. He only gave it as his opinion that this fountain, like the other articles, was the production of a professional sculptor. As to the low fountain, he further testified that it, as well as one other article, was imported in duplicates. Mr. Gardner testified that works of this character, referring to the photographs generally, were made in large quantities; that he had seen them in this country. From this evidence it is not clear that the low fountain as well as the other merchandise was not in fact the product of skilled artisans, produced in quantities in the course of a business to meet a commercial demand, which class of merchandise we have held did not come within the paragraph. Downing v. United States (3 Ct. Cust. Appls., 473; T. D. 33043). As was held in Lazarus v. United States (2 Ct. Cust. Appls., 508; T. D. 32247), the manifest purpose of Congress in providing for the low rate of duty under paragraph 470 was "to protect the labor and industrial arts of this country against the competition of similar and cheaper labor of foreign countries," and upon the other hand "to permit in the interest of art and education the introduction into this country at a low rate of duty such sculptures as are the product of a higher order of skilled and artistic conception." As we have said in other cases where claim was made under this paragraph, the importation may be entitled to its benefit, but the burden of so showing is upon the importer. The board has found in this case that the importer has not discharged this obligation and we are not justified in reversing its action. The judgment of the Board of General Appraisers is affirmed. UNITED STATES v. DAVIES, TURNER & Co. et al. (No. 1293).1 1. A CHEMICAL COMPOUND-Ground Ore Not. There must be some artificial mixture of chemicals or artificial compounding of substances to produce a chemical compound or chemical mixture. A natural ore which has received no treatment except to be mechanically ground is not a chemical compound or mixture. 2. CRUDE MATERIALS ADVANCED IN CONDITION BY GRINDING. This merchandise is not arsenic, and neither is it an acid or a sulphide of arsenic, but as a crude ore, being advanced in condition, it is not entitled to free entry. It falls within paragraph 480, tariff act of 1909, as a nonenumerated partly manufactured article. United States Court of Customs Appeals, March 25, 1914. APPEAL from Board of United States General Appraisers, Abstract 33749 (T. D. 33778). [Reversed.] William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; Charles D. Lawrence, special attorney, on the brief), for the United States. Brown & Gerry for appellees. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court: The subject of these appeals is a natural ore mined in southern France. Before importation it was ground for the purpose of facilitating the reduction of its contents. When chemically analyzed it was found to consist chiefly of arsenic and antimony in the form of oxides. As to which of these was predominant the evidence is not clear to us, the board, however, finding it was oxide of arsenic. This question of predominance we do not deem important. The merchandise as imported was in the state nature produced it, except the grinding above mentioned. The appraiser did not consider it to be commercial arsenic, and returned the ore for duty as a chem 1 Reported in T. D. 34325 (26 Treas. Dec., 554). ical mixture under paragraph 3 of the tariff act of 1909. The importers protested, claiming it was entitled to free entry under one of the following paragraphs: 626. Minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, * * or, in the alternative, if the above paragraphs were found to be inapplicable, that it was dutiable at 10 or 20 per cent ad valorem under paragraph 480 of the same act. The Board of General Appraisers upon hearing held the merchandise was entitled to free entry under paragraph 482. In its brief and argument the Government does not suggest any good reason for sustaining the collector's assessment, but confines itself to pointing out that importers' claim for free entry under any of the paragraphs quoted ought not to have been sustained. On the other hand, the importers are unable to present any cogent reason for sustaining the board's decision. We do not think the collector's assessment was correct, because paragraph 3, which it is unnecessary to quote, does not relate to wholly natural products such as the ore in this case, but, in the part relied upon for the assessment, refers to chemical compounds and mixtures. The fair implication of this language, in view of its context, is that there must be some artificial mixture of chemicals or artificial compounding of substances to produce a chemical compound and that a natural ore which has received no treatment whatever except the mechanical one of grinding is not within the paragraph. To hold otherwise would subject a large variety of articles imported in a state of nature to the paragraph, an unwarranted result, we think and one not contemplated by Congress. We do not think either paragraph 482 or paragraph 497 is applicable, because the evidence shows that the merchandise is not arsenic. and neither is it an acid nor a sulphide of arsenic. The importers' main contention for free entry is based upon paragraph 626, in that, as they claim, these ores are crude minerals. But the language of the paragraph excludes crude minerals if they have been advanced in value or condition by grinding or refining. Concededly these ores have been ground, and although the constituents have not been segregated, the grinding was for the purpose of facilitating the reduction of the contents, thereby clearly advancing the condition of the ores and doubtless also advancing their value, thereby, as we think, excluding them from the paragraph. The importers here contend, if none of the free-entry paragraphs be found applicable, that the merchandise is within the provisions of paragraph 480 and dutiable thereunder at 20 per cent ad valorem as a nonenumerated partly manufactured article, and we think this claim should be upheld. As stated, the ore is in its crude natural condition except for the fact that it has been ground. Grinding is one of the processes which is expressly mentioned as a manufacturing process in paragraph 626, and it has advanced the condition and probably the value of the merchandise. The logical conclusion therefore is, no other applicable statute having been pointed out, that it is dutiable under paragraph 480 as a nonenumerated article partly manufactured. That paragraph having been invoked in the importers' protest, and the conclusion reached being that neither the collector's assessment nor that ordered by the board can be sustained, the result is that the judgment of the Board of General Appraisers is reversed, with direction that the entries be reliquidated in accordance with the views herein expressed. UNITED STATES v. QUONG CHUN & Co. (No. 1295).1 EVIDENCE IN ONE CASE EMPLOYED TO DETERMINE ANOTHER. The testimony relied upon as taken in a former case should have been, after due notice, ordered into the record here. Failure to do this was a substantial irregularity, since it deprived Government's counsel of the opportunity to present opposing testimony.-United States v. Lun Chong (3 Ct. Cust. Appls., 468; T. D. 33041). United States Court of Customs Appeals, March 25, 1914. APPEAL from Board of United States General Appraisers, Abstract 33806 (T. D. 33789) [Reversed.] William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; William A. Robertson, special attorney, on the brief), for the United States. Submitted on record by appellee. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The merchandise in this case consists of human hair, which was assessed for duty under paragraph 442 of the tariff act of 1909 as human hair, cleaned and drawn, but not manufactured, at 20 per cent ad valorem. The board sustained the protest, which claimed the goods entitled to free entry under paragraph 583, which provides for human hair, raw, uncleaned, and not drawn. No testimony was introduced on the hearing. The board in deciding the case held: The collector in his report states that the merchandise in question is represented by a sample in Chee Chong & Co.'s case, Abstract 33188 (T. D. 33660), protest 581114. The testimony taken at the trial of that case shows that the sample was uncleaned and undrawn. Following Chee Chong & Co.'s case, supra, the protests are sustained and the collector directed to reliquidate the entries admitting the hair free of duty. It would appear that the board relied upon the testimony taken in a former case in deciding the present case, and this action is assigned as error. 1 Reported in T. D. 34326 (26 Treas. Dec., 556). The same question was presented to this court in United States v. Lun Chong (3 Ct. Cust. Appls., 468; T. D. 33041), in which case it was held that the questions of fact arising in a case must be determined upon the record in that particular case, and that inasmuch as the only evidence found in the record which went to sustain the board consisted of bare samples, and the court was unable to determine from the samples any fact which justified overturning the action of the collector, error was committed. The same reasoning applies to the present case. It would have been better practice for the board, upon finding itself called upon to rely upon evidence in any other case, to have acted under its rules and ordered this testimony into the record, giving a proper notice to the Government attorneys. We assume that the failure to do this was an oversight, and we are compelled to hold that this irregularity is substantial, as it deprived Government's counsel of the opportunity to present opposing testimony. We are unable to determine from an inspection of the sample that the importation consists of human hair, uncleaned and not drawn. We are constrained, therefore, to reverse the decision of the board and affirm the action of the collector. LANG v. UNITED STATES (No. 1303).1 1. PRINTING PRESS. A printing press is a machine used in letter-press printing on paper and like substances, and is designed to produce books, newspapers, magazines, circulars, handbills, and the like. 2. MECHANISM FOR MARKING COLLAPSIBLE METAL TUBES. The article here, a printing mechanism for lacquering and marking collapsible metal tubes, is not used by "the art or trade of letter-press printing," and it was properly assessed as a manufacture of metal not specially provided for under paragraph 199, tariff act of 1909. United States Court of Customs Appeals, March 25, 1914. APPEAL from Board of United States General Appraisers, Abstract 33883 (T. D. 33795). [Affirmed.] Brown & Gerry for appellant. William L. Wemple, Assistant Attorney General (Martin T. Baldwin, special attorney, of counsel; Thomas J. Doherty, special attorney, on the brief), for the United States. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MARTIN, Judge, delivered the opinion of the court: The present merchandise consists of a machine which prints or stamps labels upon collapsible metal tubes such as are used for holding toilet pastes of various kinds. The appraiser returned the same Reported in T. D. 34327 (26 Treas. Dec., 557). |