J,,9Pf In re DAVISQOI4UlORE ,et Li/"! . I
.
Court, '8. D.New Ye'rk.Jantiary 9. 1893.)
,
OCT,,1, '1.890. , ' 'ArtiStio paintings in oil upon a plain slab of porcelain, intended used solely for 'ornamental purposes, and not susceptible to any' other use, and; ,'WJ\l.ose valuable and distinotiwfeature is: the painting, and not the pQrc,elain, are4utiable as "paintings, in oil or water oolor" at 1:> per cent. ;:uJ. valorem,unq.er paragraph 465,; an4,not as ware, painted," 'under 100, of,the act of'October 1, 1890.
At ers.
Law.
Appeal from decision of United States general apprais-
Tha :lmpbrtation in this' stt.lt oonsisted of five articleS f:ilvoiced as "porcelain paintings/'valued at. £26. 'lOs. sterling, from Bng., which were duty by the collector ,of customs at New York at 60 per cent. ad valoreiIldihder the following paragraph of the act of October 1, 1890: "Par" 100. ChIna, porcela1n, patlan, bisque, earthen, stone, and crockery ware, 'inCluding placques, ornaments, toys" charms, vases, and statuettes, Palntedl,tinted, stained, enameled; printed, gilded, or otherwise deoorated or any mlllmer, centum ad valorem; if pla1n white, and not' or deoorate4; 1p. any manner, fifty-five per centum ad valbrem;'" " , The importers duly protested,' cWming the same to be dutiable at 15 per cent. ad valorem, ael'paintings in ou or watercolors," Within paragraph 465 of act. The United appraisers found the articles were not placques, but were well executed oil paintings done by hand on fiat pieces of and the of· the importers, the same to be properly cIassifiedunder paragraph 465. The collector appealed from their decision to the United States circuit oourt under the provisions of the act of J\l.Ae JO, l890. It was contendedl)n behalf of ,the collector that the articles cll,me within i;4e, description of paragraph 100, which tnclY,ded, eo nomine, * * * painted," and, if they were paintings, tMy were thUS pro'Vided for; that paragraph 465 only covered pamtlngs that were "not otherwise provided for." The' importers contended that an inspec1;!.on, of the sample, showed that it was a 'Work' of art; the porcel!W;l,is an insignJ,ficant elemflJlt of COSt, and the painting is the valuable and dlfiltin,ctive It is not porgelain ware, ,but1;he porcelain slab was used merely as aground ,for' the pa.1rltlrlg,and the article is, not susceptible of use otherWise than as a painting.' "
;Edward, Mitchell,U. B.Atty., and Henry a,Platt, Asst. U. S. Atty., for collector. Ha.rtley, importers. ,OQXE, District Judge, I think the imported articles are and are, not porcelain ware or placques. The deciflion ()f ihe board is, atfirmed, and ,it is directed that the articles J>e' for duty under paragraph 465. Iu (Olrcult Court,
et ,al. New York. January 6, 1893.) , " ,',
OttittOM8 DUTIES-:Cl;.ASSJFlOATIbN-cRUDE COCAINE;.
Orude cocaiJ:ie. being' an' alkaloid derived from the leaves of the coca. J;llant, in the extraction or puri1icatlon whereof alcohol was used, but which contaIned, as imported, from 10 to 20 per cent. of impurities, and
IN RE HIRZEL.
1007
wasusedchle'fl.y in the manufacture Of oleates, cocaine salts, hydrocblorate of cocaine,ooca1ne wines, etc., although occasionally used for external applications as a cheap substitute for the pure article, is dutiable as a chemical· compound or alkaloid at 25 per cent. ad valorem, under the provisions of Schedule A, par. 76, of the tariff act of October 1, 1890; not as a medicinal preparation, in the preparation of which aloohol is used, as provided for in paragraph 74 of said schedule and act.
At Law. This was an appeal by the Importers from a decision of the board of United States general appraisers afiirmlng the decision of the collector of customs at the port of New York in the classification for dUty of certain crude coca.lne imported into said port at di1rerentdates during the year 1891, and which was assessed for duty by the collector as a chemical compound at 25 per cent. ad valorem, under the Ilrovislons of Schedule A, par. 76, of the tariff act of October 1, 1890, which is as follows: "76. Products or preparations known as 'all,alies,' 'alkaloids,' 'distillejl oili3,' 'essential (lils,' 'expressed oils,' 'rendered oils,' and all combinations of the foregoing, and all chemical compounds llull salts not specially provided for in this act, 25 per centum ad valorem." The importers. protested in the case of each of the entries that the merchandise was a medicinal preparation, in the preparation of which alcohol is used, and dutiable at 50 cents per pound, under paragraph 74 of said schedule and act, which 18 as follows: "74. All medicinal preparations, including medicinal prol,lriet:ary preparations, of which alcohol isa Component part, or in the preparation of which alcohol Is used, not specially provided for in this act, 50 cents per pound." The importers appealed to the board of United States general appraisers, and a great deal of testimony was taken before said board,. from which it appeared that the article was an alkaloid extracted frOm the leaves of th\) Coca plant, and that alcohol was used in the production of this material .either as a solvent or a purifier. It also appeared that the article us imported from 10 to 20· per cent. of impurities. From the testimony of one expert witness it was shown that the substance in question was not suitable for medicinal use, but was usl¥l almost, if not entirely, in the manufacture of certain' oleates and coca.lne salts and preparations of refined cocaine, and that it could not be used as a medicine In [he condition as imported. There was also some testimony, which was uncontradicted by the importers, that all ftlkaloids were medicine alkaloids. 'rhe testimony of. one expert witness was tal,en on behalf of the importers,from which it was shown that this substance was ('rude. and was an alkaloid, in the preparation of which alcohol was COlllmonly, if not universally, used, and always was used in the purification of {'ocaine nfter it had been got out of the leaves; that large quantities of this crude cocaine were used by the makers of cocaine wines, the wine having a solving power over the coca.lna, and rnaki1l.g it·(l.cocaine wine; that it might be used in the preparation of oleates without further purification, althotlgh the witness always made oleates from the pure article; that this crude cocaine was used in a very small degree as a medical article in its present condition, and sometimes for external applications, to be applied to felons or boils, or by dentists as an anaesthetic, as a cheap substitute for the purer article. The teRtimony of two well-known druggists of long experience was produced on behnlf of the government, who testified that they did not use this crude cocaine pharmaceutically, nor in fllling physicians' prescriptions, and that they did not deal in it. The board of general appraisers found as facts "(1) that the cocaine in question is a crude alkaloid, in the extraction of which alcohol was used; (2) that it ill .known as 'crude coca.lne,' and is handled exclusively by manufacturing pharmacists; (3) that it is not offered, bought, sold, used, or known as a medicinal preparation; (4) that it is not a medicinal preparation." ABa conclusion of law the board of appraisers overruled the protests of the importers, and afiirmed the decision of the collector. The importers thereupoll appealed the case into the circuit court, under the provisions of the so-called "Administrative Act of June 10, 1890;" and, no further evidence being taken by either side, the case clUne on for trial in the circUit court upon the return (If the board of general appraisers as tiled. Alter argument by the United
1008
FEDERAL
,vol. 53.
in behalf otthe collector and government. and by counsel for the imp"l'tel'B;the circuit court delivered the following decisIon.
Sta:nleY,'Clarke & Smith, (Stephen G. Clarke, of counsel,) for importers. ·.' . . Edward::Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for collector and the United States. con,.District Judge, (orally.) The question at issue in this 'Whether or not the importation should. be. classified as an "allffilo!d,j ,\inqei'.paragraph76 of the ,act of. 1890"as classified by the collector, . or as. a "medicinal preparation", under, paragraph 74 as the importer/insists it should have been classified. It is conceded on all sidestbratthe imPQrtation is an "alkaloid." The burden, thereto establish two that fQre,ls'wo)i.'the the impO$tlon is a medichUu.preparation; and second, that the. term l'medicinal 'preparatio:\l" is .Dl0i'8 specific than the term ,'lalkaloid." It seems, tome that the qUeiltion first stated is one of fact, which, up<>.p .the .tElS.ti)n,ony, the might )Vell have d,etennined as ,they did, WRsnot a llD;ledicinalprep:ara.tion." Oe'rtainly within: the established rule, the court will 'n01'OO justifioo: in setting iulide, 'tiheirtinding as against the weight ',. BtitirrespectiVe ot this suggestion, it appears in proof, u,xlcontradicted"tha,t alt aJkaloids are medicinal; and that all medicinal preparations are not alkaloids. Therefore, on the proof, theterml'aIkaloid" would be a' more specific designation than the contended, .fq.r by the . ipl.porter, In words,. if it .were established tllil,t both sectioW! Of the statute describe import.a· .tion, the collector has .chosen,. the more specific of the two upon the evidence now presented to the court. The decision of 'the board IS affirmed.
INGERSOLL at Ill. v. MAGONE.
(Circuit Court of Appea:ls" SecoJld Oircult. 'CUSTOMS DUTIES.....TRAVELING RUGS,
February 7, 1893.)
Traveling rugs imported during the year 1888, were dutiable at 40 peJ.cel;lt. ad valorem, as rugs, under paragraph 378. Schedule K, of the tariff act of March 3, ·1883, (22 St. ait Large, p, 510,) and l;lot at 35 cel;lts per pound and. 40 per cent. ad valorem. as manufactures of wool not specially enumerated, under paragraph 362, Schedule K, of that act. 48 Fed. Rep. 159, reversed.
totheOircuit Court of the United States for the Southern of New York, 4,tLaw. Action by DaviqB. Ingersoll and William P. Glenney to recover an alleged excess of customs duties leVied by defendant ascolIetlt6r of the port of New York.. The dr'cuit court directed a verdict for defendant.' 48 Fed. Rep. 159. Plaintiffs bring error. Reversed.