Benziger v. United States

Certain figures representing various saints, and also two figures of adoring angels, as specified in the collector's letter to the board of general appraisers, were, in March, 1899, specially imported into the port of New York in good faith, for the use and by the order of societies incorporated or established solely for religious purposes. The importers claimed the figures were entitled to free entry under paragraph 649 of the tariff act of 1897. (30 Stat. at L. 151, 201, chap. 11, U.S.C.omp. Stat. 1901, pp. 1626, 1687.) The appraiser returned them as 'church statues, composed of plaster of Paris, decorated,' or as 'articles and wares composed wholly or in chief value of earthy or mineral substances, not specially provided for,' and the collector assessed upon them a duty of 45 and 35 per cent ad valorem under paragraphs 97 and 450 of the same act (pages 156, 193). If dutiable, no question is made as to the correctness of the decision of the collector in assessing the duties as he did. The contention is that these figures were 'specially provided for' in this act under the paragraph above mentioned, 649.

The importers protested against the decision of the collector, and the case went to the board of general appraisers. Testimony was taken by the board and it found as a fact the manner in which the figures were made, which was as follows:

'The clay model of the subject, of desired size, is covered by a workman with a coating some two inches thick of plaster of Paris. When this coating has 'set' or hardened sufficiently, the clay figure inside is broken up and removed, and a plaster of Paris mould thereof thus obtained. Plaster is then carefully forced into this mould, and when dry is taken out in the form of the original clay figure. This plaster figure, after having been carefully gone over by an artist or skilled workman to cure any defects in the moulding, is in turn thoroughly covered with specially prepared plaster for the final mould. This is made in sections, which when dry are removed, and together form a perfect mould, and this composite mould becomes the manufacturer's substitute for the artist's clay or plaster cast model from which he (the manufacturer) produces his moulded statues in unlimited numbers. In the moulding process the several sections of the mould are in turn laid with the concave side upward, and have a lining of 'carton pierre,' one-half inch or more in thickness, carefully laid and pressed into them by the moulder's hands with the aid of suitable tools. The extended arms, fingers, and other slender parts are strengthened by pieces of iron wire laid in the 'carton pierre,' which is then lined either with heavy paper or coarse woven vegetable fiber cloth secured with glue. After the 'carton pierre' has dried sufficiently, the several sections of the mould are removed and their contents joined together around a framework of wood, and a figure is thus formed, the counterpart of the original model. The statue then goes to a skilled workman called a 'finisher,' who, with knife or other instrument removes any roughness resulting from the joining of the sections, cures any other defects in the moulding, and smooths it down generally. It is then passed to the painter and decorator, who completes it in the style desired. The statues in 'carton romain' and in 'stone composition' are made in the same manner, except that the latter are uniformly lined with coarse cloth. The stations of the cross in 'carton pierre' and in terra cotta are produced in substantially the same way (those in terra cotta, however, being kiln dried or baked after moulding), and are painted and decorated in quite the same manner as the statues, the foreground and other landscape or perspective effects being painted in suitable tints or hues.'

The protest was overruled by the board, and a petition for a review was duly filed by the importers (petitioners) and the case heard in the circuit court, southern district of New York, and that court affirmed the decision of the board. 107 Fed. 257. An appeal was taken to the circuit court of appeals, where the decision of the circuit court was affirmed on the opinion of the court below. Upon petition of the importers a writ of certiorari was issued from this court, and the case brought here for review.

Messrs. W. Wickham Smith and Charles Curie for petitioners.

[Argument of Counsel from pages 40-42 intentionally omitted] Assistant Attorney General McReynolds for respondent.

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: