United States Customs Court, First Division

Protests 301677-G/76761, etc., against the decision of the collector of customs at the port of Chicago

[Affirmed.]

(Decided November 12, 1929)

Brooks & Brooks (Ernest F. A. Place of counsel) for the plaintiffs.

Charles D. Lawrence, Assistant Attorney General (Kenneth G. Osborn and Ralph Folks, special attorneys), for the United States.

Before MCCLELLAND, SULLIVAN, and BROWN, Justices

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SULLIVAN, Justice: As stated by counsel for the plaintiffs at the trial, "the merchandise which is the subject of these protests has been reported by the appraiser to, consist of mountings for projection lenses. It has been assessed for duty under the provisions of paragraph 228 at 45 per cent. We claim that it is not any of the items provided for under paragraph 228. Our main claim is at 30 per cent as parts of all other machines under paragraph 372; and alternatively we claim 40 per cent under * paragraph 399." The pertinent portions of the competing paragraphs are as follows: PAR. 228. * photographic and projection lenses, opera and field glasses, telescopes, microscopes, and other optical instruments, and frames and mountings for the same; all the foregoing not specially provided for, 45 per centum ad valorem.

PAR. 372. *

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* all other machines or parts thereof, finished or unfinished, not specially provided for, 30 per centum ad valorem: PAR. 399. Articles or wares not specially provided for * if composed wholly or in chief value of * metal, but not plated with platinum, gold, or silver, or colored with gold lacquer, whether partly or wholly manufactured, 40 per centum ad valorem. [Italic ours.]

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Mr. McMillan, testifying on behalf of the plaintiffs, produced one of the imported items, and testified it was in the same condition as imported with the exception of four screws which had been added in this country. This was marked "Exhibit 1." It is not now before us, having been withdrawn by the importers.

Describing the functions of Exhibit 1, the witness testified:

Normally this device was associated with an upper magazine and a lower magazine. The upper magazine carried a moving-picture film which is fed down through the upper part of the machine, and this device contains within itself means for moving that film in a downward direction intermittently through the path of the light, where it is finally wound up on the spindle of the lower magazine. The witness then testified Exhibit 1 is part of the device which projects an image from a motion-picture film onto a screen.

Illustrative Exhibit A is a cut of the complete moving-picture machine of which Exhibit 1 is a part. Exhibit 1 is evidently the portion of the apparatus containing mechanism by which motion is imparted to the film to pass it through the path of the light, so that

the photographs on the film are projected on the screen, as the wellknown moving pictures.

For convenience a copy of the cut, illustrative Exhibit A, is attached hereto. The merchandise in question is that part of the machine within the circle, minus the lens holder, which is indicated by "X."

It was testified as being necessary to apply power to Exhibit 1 for it to function, by means of a belt pulley on the driving shaft. This is done by means of a small electric motor from which a belt runs to the belt pulley on the driving shaft.

On cross-examination the witness testified that the object of Exhibit 1 was the projection of motion pictures on a screen; that it does not have any other use and is essential for that purpose. The witness further testified that Exhibit 1 may be used to support the lens used to project the picture, and usually does support it. An inspection of the cut, illustrative Exhibit A, shows this statement is correct. As imported Exhibit 1 is without the lens.

Mr. DeKruif testified on behalf of the defendant that his concern sold "Motion-picture projectors and motion-picture projection lenses, spotlights, stereopticons, motion-picture cameras," etc., and has been so engaged since December 2, 1920; that at and prior to September, 1922, he sold projection lenses and frames. He testified he has been familiar with the merchandise depicted on the cut inclosed in the circle on illustrative Exhibit A, omitting the part marked "X," which was not included, since 1920; that he has dealt in it personally at wholesale at and prior to September, 1922; that it was known, bought, and sold in the trade "as motion-picture projection mechanism." He then testified as follows:

Q. As to the portion marked with a circle, are you familiar with merchandise like that?-A. Yes, sir.

Q. For how long a period of time?-A. Since 1920.

Q. Do you know what part you have enumerated would be covered by that?-A. The word "frame."

Q. Has that been true throughout your experience? A. Yes, sir.

Q. Has that been the general understanding throughout the trade?—A. It has. Q. In the optical-instrument trade?-A. The optical-instrument trade as far as it is connected with the motion-picture industry.

Government counsel then stated he disputed the appraiser's statement in his report that this merchandise "consists of mountings for projection lenses," and that the position of the Government is that the portion of the article imported is known as a frame.

The witness then testified that in the motion-picture trade there is not any definite, uniform, and general understanding as to the term "mountings," but there is in that trade a definite, uniform, and general understanding as to the term "frame" as follows:

The frame is the center part of a mechanism similar to this one in the circle, to which everything is mounted. We do not use the word "mounting."

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He stated on cross-examination that the function of the item he denominated a "frame" is "for creating on the screen an illusion of motion," or a part of the device for causing pictures in a film to be projected on a screen; that the lens is mounted or attached to the frame; that his attention was directed to the base marked "Fulco" in the cut, illustrative Exhibit A, and he stated it was a mounting and "would not be a frame particularly"; that illustrative Exhibit B was the lens holder. Illustrative Exhibit B was not on Exhibit 1 as imported. It is marked with an "X" on illustrative Exhibit A. The witness testified that the lens is placed in the lens holder "and fastened to this screw and then focused." The screw referred to is the thumbscrew on top of illustrative Exhibit B, which loosens and tightens the collarlike device holding the lens.

Mr. Griffin testified for the defendant that he sold "motion-picture equipment of all kinds," and had done so for about 12 years; that he had "sold all over the United States," also having experience "building the apparatus themselves." He testified he was familiar with Exhibit 1. He described it as follows:

Exhibit 1 consists of a main frame, which supports the various mountings, composed of assemblies of the various units which go to make up the complete projector. By that, I mean there is the center frame, which is the support for the entire structure; the shutter unit which is mounted on part of that, the intermittent unit that is covered by this casing, mounted in that main structure and the casing which is mounted all about it, together with the gate and points for mounting the lens.

The frame of which he spoke "is a supporting member of the entire structure" and bears the stress and weight of the other parts he mentioned.

He was read the definition of "frame" from Webster's New International Dictionary as follows:

Anything composed of parts fitted or united together; a fabric, a structure, especially the constructional system, whether of timber or metal, that gives to a building, vessel, etc., its model and strength. The skeleton of a structure. He testified that his understanding of the meaning of the word "frame" did not differ therefrom.

He was then read from the same dictionary the definition of "mounting" as follows:

Mounting: That which serves as a mount, or by which anything is prepared or equipped for use or set off to advantage; equipment; embellishment; setting; as the mounting, or nonoptical parts (pier axes, circles, tube, etc.) of a telescope, sword, diamond, gun, or picture.

He stated his understanding of "mounting" did not vary at all from that definition.