the same conclusion would follow as to paintings, drawings, and sketches.

In other words, if the artist, painter, or sculptor is limited to reproducing upon canvas or in marble (or other media of presenting the sculptor's art) a truthful resemblance or likeness of the form and features of the living subject, he can not produce an original painting or sculpture. This statement reduces to the logical conclusion that to produce an original sculpture the artist must present something he has conceived or imagined and not something that exists. It must be an ideal, not a reality. That is what the board apparently had in mind.

In United States v. Olivotti & Co. (7 Ct. Cust. Appls. 46; T. D. 36309 at 48) we said that "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, or thickness, or of length and breadth only." This, of course, was a general suggestion and yet we think it is not consistent with the idea that an original sculpture must necessarily be the conception of the mind of the artist; must be an ideal and not a reality.

The statues before us are concededly works of art. They are made as the professional production of sculptors only and are not works of utility. They are apparently the only statues that have been made of the individuals whom they represent and we think they are original statues within the meaning of paragraph 652.

We are of opinion that under that paragraph a statue may be an original when produced by the sculptor from a photograph as well as from a person sitting before him. In each case it is clearly the effort and desire of the sculptor to show upon the marble the form and features of the person whom it is designed to represent, but in attempting to accomplish these results he calls into play not only his professional skill but his artistic imagination or conception. Of necessity he must do this in order to reproduce in marble the form and features of the subject of the photograph so that the likeness to the original is at once apparent. If he can not present a recognizable likeness, his efforts are in vain because one important purpose of obtaining the statue is that thereby shall be presented such a likeness of the individual. It seems to us that the sculptor who can do this must be possessed of and must exercise artistic imagination and conception of no mean order and we are unable to see why in so doing he is not producing an original sculpture.

In this connection it will be remembered that this is not an attempt to obtain free entry for copies of statuary made by an artist other than the one who made the original, but is apparently an honest

attempt to obtain and import statues of recently living persons of whom, so far as the record shows, no statues have heretofore been made. The judgment of the Board of General Appraisers is reversed.

DISSENTING OPINION BY SMITH, JUDGE.

An importer of Italian marble, principally statuary, received an order for statues to be executed by sculptors from photographs delivered to him by his customers. The photographs were sent to Italy and from them models were made which were in their turn photographed. The photographs of the models were sent to the United States for approval and having been approved by the customers were sent to sculptors in Italy, who were ordered to proceed with the work.

The statues when finally completed were excellent and faithful reproductions of the photographs originally furnished. Indeed, the photographs so completely determined the conception of the artist that in one case the sculptor was not allowed even to arrange the hair as he pleased, but was compelled to sculpture it just as shown in the original photograph.

The sculptures were original in the sense that they were the first statues produced from the photograph, but they were not in my opinion original in the sense that they were the original conceptions of a sculptor. The sculptors were permitted to conceive nothing. They simply carved in stone a faithful reproduction of the photograph. It required skill and maybe art to reproduce the photograph in the round, but the mental picture and the conception of it in the round was a mental picture and conception which was wholly produced by the photograph itself.

Sculptors and painters may of course use photographs and models as aids to carry out their own conceptions of individuals and natural objects, but some play must be given to the imagination of the artist in order that his conception may be considered as original.

Painters and sculptors have been compelled to rely on photographs, pictures, and sketches in order to assist them in forming their own conception of Washington and Lincoln, but in no case has the finished work of the artist been a faithful reproduction of the photographs, pictures, and sketches to which they were compelled to resort. In fact, that their conceptions were original is established by the fact that the completed painting or sculpture of one artist differs radically from that of all the others.

If the stamp of originality attaches to a faithful reproduction in stone of photographs, it is hard to see why a painting of a photograph or the painting of a painting of a photograph should not likewise be regarded as original.

I am of the opinion that the judgment of the board should be affirmed.

UNITED STATES v. MITCHELL (No. 2340).1

EVIDENCE, PRESUMPTION FAVORS COLLECTOR-LAST BLOCKS.

Merchandise was described in the invoice as "last blocks" and also "split blocks," was entered as "split last blocks," and was assessed as "last blocks" under paragraph 404, tariff act of 1922. It was claimed to be entitled to free entry under paragraph 1700 as crude timber not specially provided for, but the evidence not being sufficient to overcome the presumed correctness of the collector's classification, the judgment of the Board of United States General Appraisers sustaining the protest is reversed.

United States Court of Customs Appeals, February 25, 1924.

APPEAL from Board of United States General Appraisers, Abstract 46383. [Reversed.]

William W. Hoppin, Assistant Attorney General (Charles D. Lawrence and Fred J. Carter, special attorneys, of counsel), for the United States.

No appearance for appellee.

[Oral argument February 15, 1924, by Mr. Lawrence.]

Before MARTIN, Presiding Judge, and Smith, Barber, BLAND, and HAtfield, Associate Judges.

HATFIELD, Judge, delivered the opinion of the court:

An importation described in the invoice as "last blocks" and also as "split blocks," and described in the consumption entry as "split last blocks," was assessed for duty by the collector as "split last blocks" at the rate of 10 per cent ad valorem under paragraphi 404 of the tariff act of 1922, which reads as follows:

PAR. 404. Hubs for wheels, posts, heading bolts, stave bolts, last blocks, wagon blocks, oar blocks, heading blocks, and all like blocks or sticks, roughhewn, or rough shaped, sawed or bored, 10 per centum ad valorem.

In his protest against the assessment the importer claimed that the merchandise was entitled to free entry under paragraph 1700 of the tariff act of 1922, the pertinent part of which reads as follows:

PAR. 1700. Wood: Logs; timber, round, unmanufactured, hewn, sided or squared otherwise than by sawing; pulp woods; round timber used for spars or in building wharves; firewood, handle bolts, shingle bolts; and gun blocks for gunstocks, roughhewn or sawed or planed on one side; sawed boards, planks, deals, and other lumber, not further manufactured than sawed, planed, and tongued and grooved; clapboards, laths, ship timber; all of the foregoing not specially provided for.

*

At the hearing before the Board of General Appraisers no testimony was offered by either side, the case being submitted on the official record, including a sample of the merchandise.

The Board of General Appraisers in sustaining the protest held that

* The merchandise involved has not been "roughhewn" or "rough shaped." It is simply sawed and split, and it differs both in shape and con

1T. D. 40052.

dition from the merchandise under consideration by the court in the Rochester Last Works case, supra.

In these pieces of wood the form of last blocks, even in the crudest shape, is entirely missing and they are therefore not classifiable under paragraph 404.

We are unable to see from an examination of the merchandise, unaided by testimony explanatory of the subject, that the merchandise described in the invoice as "last blocks" and also as "split blocks," and described in the consumption entry as "split last blocks," and found by the collector to be

"split last blocks" shaped by being split radially from maple bolts approximately 13 inches long, heart section removed, and are about 5 inches wide on the outside tapering to about 2 inches on the narrow side in a radial depth of 6 inchesand assessed by him under paragraph 404 of the act of 1922, is not in fact that which the collector found it to be. On the contrary, it seems to us by an inspection of the sample and by an examination of the official record that the merchandise was properly assessed by the collector; it was invoiced as "last blocks;" it was entered by the importer as "split last blocks" and he has not since appeared to withdraw his characterization of the merchandise.

In any event, we think that a nonexpert examination of the sample of the merchandise in this case does not disclose facts sufficient to overcome the legal presumption of correctness of the collector's classification.

The judgment of the Board of General Appraisers is accordingly reversed.

SCARAMELLI v. UNITED STATES (No. 2300).1

CONSTRUCTION, SECTIONS 641 AND 501, TARIFF ACT OF 1922-APPRAISEMENT APPEALS.

Section 641, tariff act of 1922, providing, in effect, that all rights and liabilities arising under former laws should be pursued under them, negatives the idea that the appraisement appeal to the United States Court of Customs Appeals instituted by section 501 applies to cases arising under the act of 1913.

United States Court of Customs Appeals, March 3, 1924.

APPEAL from Board of United States General Appraisers, Reappraisement Circular 33433. [Dismissed.]

Barnes, Chilvers & Halstead (Frank M. Halstead of counsel) for appellant. William W. Hoppin, Assistant Attorney General (Pelham St. George Bissell, special attorney, of counsel), for the United States.

[Submitted without oral argument November 17, 1923.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges; HATFIELD, Associate Judge, participating in the decision by agreement of counsel.

1 T. D. 40056.

MARTIN, Presiding Judge, delivered the opinion of the court: The issue in this case presents a question of procedure only. It arose upon an appeal for a so-called re-reappraisement of the imported merchandise.

It will be remembered that under subsection M of Section III, tariff act of 1913, a right of appeal from an appraisement by the local appraiser was granted both to the collector and the importers, and when such an appeal was taken it became the duty of an appellate single general appraiser to reappraise the merchandise, whereupon either party had the right to appeal from that appraisement to a re-reappraisement to be made by an appellate board of three general appraisers. That board was to hear testimony and argument, and 'proceed by all reasonable ways and means in their power to ascertain, estimate, and determine the dutiable value of the imported merchandise." In other words, the appellate board was to make a new appraisement of the merchandise after hearing evidence and arguments. It was furthermore expressly enjoined by the act that no appeal to any court could be taken by either party from such a decision of the board in re-reappraisement.-United States v. Loeb & Schoenfeld Co. (7 Ct. Cust. Appls. 380; T. D. 36961).

It will be remembered also that under section 501, tariff act of 1922, a similar right of appeal from an appraisement by the local appraiser was granted to the respective parties, and also a right of appeal from a reappraisement by the single general appraiser to a board of three general appraisers. Unlike the act of 1913, however, the latter act did not authorize the board in such case to make a new appraisement of the merchandise upon evidence and arguments, but required only that it "shall consider the case upon the samples of the merchandise, if there be any, and the record made before the general appraiser, and, after argument on the part of the parties if requested by them or either of them, shall affirm, reverse, or modify the decision of the general appraiser or remand the case to the general appraiser for further proceedings." In other words, such an appellate board was not required to make a new appraisement of the merchandise, but only to review the action of the single general appraiser upon the record of his appraisement. And, furthermore, for the first time in tariff legislation the tariff act of 1922 provided that an appeal could be taken by either party from the decision of the board of three in such proceedings to this court.

These recitals are relevant because of the fact that the proceedings in appraisement and reappraisement in the present case were begun when the tariff act of 1913 was in force, and were concluded after that act was repealed by the tariff act of 1922. A question thus arose as to which act governed the proceedings after the date of the repeal. The merchandise was entered for ad valorem duty in July, 1922. The local appraiser advanced the entered value, whereupon the