"It is the practice of professional sculptors to have their original creations in | clay reproduced in plaster of Paris for permanent use as models from which the objects are sculptured in marble, stone or other material. The sculptor invariably goes over his plaster cast with utmost care, not only repairing any defects in the moulding, but defining more accurately the hair, finger nails, folds of the drapery, and outline generally, and, above all, perfecting the facial and general expression. These plaster of Paris models are known in commerce and in art as 'casts of sculpture.' They represent the artist's right and title to his creation, and unlike the merchandise in question here, are not painted and decorated, nor dealt in as ordinary commercial articles. Casts in plaster of Paris are likewise produced from rare objects of sculpture, generally for use in museums or art institutions, but sometimes for reproduction by sculptors in marble, stone, etc., and are also called 'casts of sculpture,' but are in strict sense 'casts from sculpture,' being cast from plaster of Paris from sculptural objects, such, for example, as the high relief frieze of the Parthenon at Athens, the facade of the guild of the Butchers house at Hildesheim, the tomb of Englebert, and other works in the Metropolitan Museum of Art mentioned in the testimony of Messrs. Stoltzenberg and Trueg." 191 For convenience these provisions are reproduced in the margin as they existed in the act of 1861 (12 Stat. at L. 178, 193, chap. 68); the Rev. Stat. (§ 2505, pp. 482, 487, 488); the act of 1883 (22 Stat. at L. 488, 514, 520, chap. 121); the act of 1890 (26 Stat. at L 567, 608, 609, chap. 1244); the act of 1894 (28 Stat. at L. 509, 543, 544, chap. 349); and in the present act of 1897 (30 Stat. at L. 151, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687).† An examination of the provisions of the various statutes shows a somewhat uniform purpose on the part of Congress to provide free entry to casts of marble, bronze, alabaster, or plaster of Paris, and also statuary and specimens of sculpture, when specially imported, in good faith, for the societies enumerated in the acts. It is also seen that under the language used in these different paragraphs, which may be described as the "philosophical and scientific,” and the "regalia and gems" paragraphs, some article might be admitted under either paragraph. There is no doubt that under the tariff acts prior to that of 1897, these figures could have been admitted free of duty, as "casts of plaster of Paris." Indeed, the Treasury Department had so de †Act of March 2, 1861, sec. 23. (12 Stat. at L. 178, chap. 68.) All philosophical apparatus, The board was of opinion that these fig busts, and casts of marble, bronze, alabaster, instruments, books, maps, and charts, statues, statuary, ures were what is known in commerce, in plaster of Paris; paintings and drawings, etchart, and in common speech as "statuary," ings, specimens of sculpture, cabinets of coins, and were not "specimens or casts of sculp-medals, regalia, gems, and all collections of anture," and were therefore assessed, as tiquities: Provided, The same be specially im stated. If these figures were to be entered as statuary, they would come in free under paragraph 649 of the act of 1897, but for the limitation contained in paragraph 454, which limits the term "statuary," as used in the act, so as to "include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster or from metal, and as is the professional production of a statuary or sculptor only." The circuit court did not regard it necessary in the disposition of the case to determine whether these particular*figures would come in free as casts of sculpture under paragraph 649, if imported in the crude state, but held that as the figures had been painted and gilded, they were not thereafter casts of sculpture within the meaning of the act. Upon the argument of this case at bar frequent reference was made by counsel to the provisions in former tariff acts upon this subject, as bearing upon the proper construction of the one under consideration. ported, in good faith, for the use of any society literary, or religious purposes, or for the enincorporated or established for philosophical, couragement of the fine arts, or for the use or by the order of any college, academy, school, or seminary of learning in the United States. Revised Statutes of 1874, Sec. 2505, Para graphs 1708 and 1726, pp. 482, 487 (16 Stat. at L. 256, 268, chap. 255). instruments, and preparations, statuary, casts 1726. Regalia and gems, and statues and (P. 514.) Paintings, in oll or water colors, and statuary not otherwise provided for, thir cided in a case hereafter cited. Those words, | above referred to. The language used in "casts of marble, bronze, alabaster, or paragraph 649 is very broad, including all plaster of Paris," which appear in all casts of sculpture, as well those heretofore the statutes cited prior to 1897, in the mentioned in paragraphs in prior statutes philosophical apparatus paragraphs, are left similar to paragraph 638 as others. The out in the act of 1897, paragraph 638, and omission in the latter paragraph was, thereit is therefore urged that the figures are not fore, immaterial if these figures are casts entitled to free entry, as they are not casts of sculpture. Although they might heretoof sculpture, provided for in paragraph 649. fore have come in under the designation of The question is, therefore, whether the omis-"casts of plaster of Paris" as contained in sion of those words in paragraph 638 pre- former paragraphs, we think they also vents the free entry of these figures, or are might have come in under the designation they properly described as casts of sculp-"casts of sculpture" contained in the act of ture, and therefore entitled to free entry 1894 as well as in the act of 1897, and that under paragraph 649. it was not intended by Congress, in omitting the words in the latter act as to casts of plaster of Paris, in paragraph 638, to prevent their free entry under paragraph 649. in used shall be understood to include only professional productions, whether round*or in re lief, in marble, stone, alabaster, wood, or metal, of a statuary or sculptor. We do not attach any very great importance, as evidence of the intention of Congress, to the omission in the act of 1897 ty per centum ad valorem. But the term "stacuary," as used in the laws now in force imposing duties on foreign importations, shall be understood to include professional productions of a statuary or of a sculptor only. (P. 543.) (Free list.) Par. 585. (P. 520.) (Free list.) Par. 759. Philosophical and scientific apparatus, ical and scientific apparatus, instruments, preparations, statuary, casts of marble, bronze, alabaster, or plaster of Paris, paintings, drawings, and etchings, specially imported, in good faith, for the use of any society or institution incorporated or established for religious, philosophical, educational, scientific, or literary purposes, or encouragement of the fine arts, and not intended for sale. (P. 526.) (Free list.) Par. 771. Regalia and gems, statues, statuary, and specimens of sculpture, where specially imported, in good faith, for the use of any society incorporated or established for philosophical, literary, or religious purposes. Act of October 1, 1890. (26 Stat. at L. pp. 567, 608, 609, chap. 1244.) (P. 602.) Par. 465. Paintings, in oil or water colors, and statuary, not otherwise provided for in this act, fifteen per centum ad valorem; but the term "statuary," as herein used, shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster, or from metal, and as is the professional production of a statuary or sculptor only. (P. G08.) (Free list.) Par. 677. Philosophical and scientific apparatus, instruments, and preparations; statuary, casts of marbel, bronze, alabaster, or plaster of Paris; paintings, drawings, and etchings, specially imported, in good faith, for the use of any society or institution incorporated or established for religious, philosophical, educational, scientific, or literary purposes, or for encouragement of the fine arts, and not intended for sale. (P. 609.) (Free list.) Par. 692. Regalia and gems, statues, statuary, and specimens of sculpture, where specially imported, in good faith, for the use of any society incorporated or established solely for educational, philosophical, literary, or religious purposes. Act of August 27, 1894. (28 Stat. at L. pp. 509, 543, 544, chap. 349.) (P. 542.) (Free list.) Par. 575. Paintings, and statuary, not otherwise provided for in this act, but the term "statuary" as here ary, casts of marble, bronze, alabaster, or plaster of Paris, paintings, drawings, and etchings, specially imported, In good faith, for the use of any soclety or institution incorporated or established for religious, philosophical, educational, scientific, or literary purposes, or for encouragement of the fine arts, and not intended for sale. (P. 544.) (Free list.) Par. 603. Regalia and gems, statues, statuary, and specimens or casts of sculpture, where especially imported, in good faith, for the use of any society Incorporated or established solely for educational, philosophical, literary, or religious purposes. Act of July 24, 1897 (the present act). (30 Stat. at L. pp. 131, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687.) and (P. 134.) Par. 454. Paintings, statuary, not especially provided for in this act, twenty per centum ad valorem; but the term "statuary" as used in this act shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster, or from metal, and as is the professional production of a statuary or sculptor only. (P. 200.) (Free List.) Pars. 638. Philosophlcal and scientific apparatus, utensils, instruments, and preparations, including bottles and boxes containing the same, specially imported, in good faith, for the use and by order of any society or institution incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, or for the use or by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale, subject to such regulations as the Secretary of the Treasury shall prescribe. (P. 201.) (Free list.) Par. 649. Regalia and gems, statuary, and specimens or casts of sculpture, where specially imported, in good faith, for the use and by order of any society incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, and not for sale; . The language in paragraph 638 was simply are not, however, all of one mind, even upon unnecessary in a case where the same arti- the meaning of the term. Some thought cles were entitled to free entry under an- that these were casts of sculpture in a cerother paragraph. tain sense as long as they remained simply In attempting to understand the true con-plaster casts, but just as soon as additional struction of the words used in the act of touches were given to the casts, in the way 1897 we are not very greatly aided by the of paint or ornamentation, the casts lost opinions given by various artists called by their original character as plaster casts and the government and contained in this rec-became statuary in wood or alabaster or ord, as to what was the proper designation bronze. At any rate, it would cease to be of the figures. These opinions varied, al- an article of clay and would become a finthough based upon conceded facts as to the ished thing. Just as soon as a cast of manner and process by which the figures sculpture was painted it would, in the were produced. According to some of them opinion of some of the witnesses, cease to be there were but two kinds of "casts of sculp- a cast of sculpture. ture;" one where professional sculptures Some of the artists said that you might have their own original creations of clay take a cast of old sculpture, such as the reproduced in plaster of Paris for perma- Venus de Milo, and different antiques, and nent use as models, and from which objects reproduce them in plaster, and they would are sculptured in marble, stone, or other be casts of old sculpture. But whether the material; and the other, where casts in plas-figures in question here were casts of sculpter of Paris are produced from rare objects of sculpture, generally for use in museums or art institutes. Some regarded the term "sculpture so wide that it was difficult to define definitely," although they thought that the figures in question were not casts of sculpture, while some regarded casts of sculpture "as such classes of plaster casts or clay or marble or bronze as are to stand singly and alone, and not be sold in endless numbers, and to be exhibited temporarily in some exhibition." We think the last definition is inaccurate and inadmissible. Under this view, whether a figure is a cast of sculpture or not, does not in the least depend upon how it is made. It is the use to which it is destined which is to determine what it is in fact. If there are to be a great many of them, to be "sold in endless numbers," they are not casts of sculpture, no matter how they are made, and if they are to “stand singly” and “be exhibited temporarily" then they are such casts. We are not satisfied as to the correctness or completeness of this definition. Whether in one case the cast is for the use of the sculptor only or in the other is destined to be reproduced indefinitely, we think is not material. They are made in the same manner, reproduced from clay, and the same means or process is taken or employed in obtaining the result. Whether the clay model is the work of the superior genius of a great sculptor or is the result of the efforts of one who could not be classed as a genius at all, they are both fashioned in the same way and the same process is followed with regard to both, and we do not think that in this statute there was any intention to confine the meaning to casts of those clay figures which were fashioned by the hand of genius, while excluding those of inferior artists or workmen. The witnesses 24 S. C.-13. ture, some of the witnesses were not sure. One witness for the government gave as his opinion that the figures in question were casts or specimens because they are sculp ture. As to whether they were cast or moulded, he replied that he could not state definitely, but presumably they were casts. Another witness for the government was not willing to swear that the figures were not casts of sculpture, while still another said that in his judgment the figures in question were plaster casts in sculpture. He also thought that they might be termed casts of sculpture. Another witness for the government thought they might be called casts of bad sculpture, and that they were such articles as he had heard artists call casts of sculpture. This brief review of some of the evidence shows the difference of opinion among the artists themselves as to what would come within their understanding of the definition of the term "casts of sculpture." The artists evidently had a contempt for the fig ures as specimens of art, and very probably that contempt was well founded; but, as we have said, the opinions really give no aid in considering whether the figures are or are not casts of sculpture. The description of the manner in which they are made, as set forth in the foregoing statement of facts, and also the evidence of the witnesses for the government, showing the unity of the method and process with that followed in the case of an admitted cast of sculpture, furnish us better means of determining the question in dispute than may be found in the opinions set forth in the record, and yet some of the witnesses do in fact, as we have seen, admit that the figures are casts of sculpture, bad though they may be. The government also examined one or two witnesses who were agents or salesmen for *51 manufacturers in this country of what they tions of a statuary, or of a sculptor only." stated to be substantially the same class of It appeared on the trial that the images figures as the ones under discussion, and in were made at Munich by persons who protheir catalogues describing the various arti- fessed to have made a study of the art of cles for sale, figures such as these were gen-sculpture for many years, and who acted unerally designated as "statuary," and when der the general supervision of an acknowl taking orders for such goods they were edged sculptor. Several copies were made called "statuary" or "composition statues." from one model, and in ordering them the One of the customs examiners also testi-importer designated which he wanted by the fied that for the last few years articles of number of the article in a catalogue, and the the nature here in question had been re- price of the images varied from five to a turned on invoices to the collector as hundred dollars. "church statuary composed of plaster, decorated, or pulverized cement and plaster." The witness used the expression "church statuary composed of" as having been given him by some superior officer, and it was accepted by him as such. It will be observed that there is nothing in the tariff act which speaks of "church statuary" by name. We are not satisfied from this evidence that these figures are not casts of sculpture within the meaning of the statute, nor are we impressed with the statement of some of the witnesses that if, in what is termed their crude state, these figures might or would be described as casts of sculpture, they would cease to be such when painted or decorated. They are still, in substance, the same thing, whether painted or not. How does the mere gilding or painting alter their original character? Some little value has, perhaps, been added to them, but they yet remain what they were before the painting was done. Painting a marble statue does not alter its original substance, or give the subject a new definition or meaning. Some marble statues, the work of a great sculptor, have been slightly painted, under his own direction, for the purpose, as supposed, of imparting a more lifelike appearance to the statue, and of possibly thereby enhancing its value. But the statue remained a statue nevertheless. It is so, as we think, in this case. The painting or gilding*was done to render the figures more fit for the only purpose of their importation, that is, for use in a religious society. And it was the object, as we believe, of the statute to admit such works free of duty. The circuit court for the southern district of New York held that the articles were entitled to admission as statuary under the provision above mentioned, and the Department acquiesced in the opinion of the court. In that case the Department was of opinion that the works were obviously made by skilful men, and might come in even under the limitation of the word “statuary” as defined in the act. It cannot be and is not claimed that the figures in question here could come in under the term "statuary," as that term is defined in the statute of 1897, paragraph 454, which is much more narrow than that of the Revised Statutes. The case shows, however, the tendency of the Department to a liberal construction of the tariff act in this regard. On December 22, 1885 (Synopsis of Decisions of the Treasury Department, 1885, p. 5 513, No. 7,274), the question was submitted as to whether figures similar to those under consideration were entitled to free admission under the act of 1883. The Department held that they could not be regarded as "statuary" because of the limitation of the meaning of the word "statuary," as used in that act (22 Stat. at. L. 513, chap. 121), which provided that the word "statuary" "should be understood to include professional productions of a statuary or of a sculptor only," but that they might be admitted as casts of plaster of Paris under paragraph 759 of the free list. Paragraph 771 did not contain the words "casts of sculpture." In Synopsis of Decisions, Treasury Department, July to December, 1891, vol. 2, p. 1164, there is contained a reply to the In case No. 5,549, Synopsis of Decisions of naval officer of New York relative to the the Treasury Department, 1883, p. 41, it proper classification of certain figures imwas said that the case related to certain ported and claimed to be free of duty as images made of earthen substances which, statuary or as casts of plaster of Paris, imon importation, were subjected to duty at ported for a church under paragraph 677, the rate of forty per centum ad valorem, but or as statues, statuary, or specimens of were claimed in the protest filed to be dutia- sculpture, under paragraph 692 of the tarble at the rate of ten per centum ad valorem, iff act of 1890. The Acting Secretary reunder the provisions for "statuary" contained ferred to the fact that the board of general in schedule M, Revised Statutes, p. 478, § appraisers had held that the restrictive defi2504, under heading "Paintings and Stat-nition in regard to "statuary" under paranary;" the word "Statuary" being defined graph 465 did not apply to such statuary as as limited "to include professional produc- is specified in the free list. The language of that paragraph (465) the board held | fied by the collector as coming within the limited its definition of the term "statu- terms of that paragraph, may be imported ary" to that paragraph alone. Continuing, free of all duty, without regard to its arthe Secretary said: tistic character." "The Department believes that the crude Looking at the various provisions in the or inartistic character of the figures under tariff statutes, from and including 1861 to consideration cannot be urged as a reason and including that of 1897, and taking into for their exclusion from the benefits of free consideration the evidence in the record in entry. It is fair to infer a liberal inten- this case, together with the action of the tion on the part of Congress from the fact Treasury Department, as above referred to, of its inclusion of religious institutions the answer to the question of what is the among those to which the privilege of free true meaning or construction of the words entry is extended. Religious institutions "casts of sculpture," as used in the statute are not schools of art, nor can congregations of 1897, is not perfectly clear. Some fair without adequate means always consult es- reason might, perhaps, be given for a conthetic rules in regard to the equipment of struction which refuses free entry to these their churches. It is the sentiment of pious figures, but we think that the purpose of associations which gives the figure its effi- Congress was to permit their introduction eiency as an aid to religious worship, and free of duty as casts of sculpture, when the plaster cast may, in this way, be as specially imported, in good faith, for the servicable to the humble worshiper as the use and by the order of any of the institu more costly work of genius." tions named in the act. The paragraph in question (649) makes it necessary not only that the casts of sculpture should be specially imported, in good faith, for the use of a society, but it must be so imported by the order of such society. Here for the first time it is made necessary that the importation must have been by order of the society, which words are a still further limitation of the conditions upon the existence of which free entry is permitted. * The subject was again before the Treasury Department on April 26, 1893. (Synopsis of Decisions, Treasury Department, 1893, p. 340.) As appears upon its face, the let ter of the Secretary was in reply to a communication from the board of general appraisers, protesting against the free entry of articles of this nature under the act of 1890, because of the advantages thus given to the foreign dealer in these figures, some of whom had a store in Montreal, although the figures were manufactured in Munich, and the order was supplied from the Montreal store, and the board insisted that the figures were not entitled to such entry by the true construction of the statute. The Secretary, in reply, referred to what the board stated to have been the evident intention of Congress in the act that the "objects exempted from duty should be of such high order as to inspire admiration and devotional feeling," etc., and held that the views of the board might "apply to paragraphs 692 and 465, but not to paragraph 677, We are of opinion that the evidence does which provides (with the restriction enu- not justify the assertion that the articles merated in paragraph 465 and implied in paragraph 692) for the exemption from duty of all casts of plaster of Paris imported in good faith for the use of any society or institution incorporated or established for religious purposes." It may well be that when the act of 1897 was drawn, its framers had in mind the objections above mentioned, made by the board of general appraisers, and therefore further limited the right of free entry to a special importation in good faith for the use and by order of the society, and to that extent protecting the interests of the "regular importers who sell from stock," while at the same time recognizing the policy of permitting a free entry to those societies who, in good faith, ordered the articles for their own special use. in question were simply known in a commercial sense as "statuary," or "church statuary." The fact that figures of this nature were designated as statuary in a catalogue of a manufacturer in this country does not clearly or conclusively establish It was further stated that "the Depart- such commercial designation. They were ment cannot interpret the provisions of also designated composition statues by the paragraph 677 as establishing in any re- salesman when taking orders for them. If spect the esthetic standard for such importa- the articles were also known as "casts of tions, and, without discussing the propriety sculpture," and such language correctly deof such standard, must administer the law scribed them, then they would come within according to its apparent intent." Also: the statute, although some manufacturers in "Under the last named paragraph (677) it this country should, for purposes of a short would appear that any plaster cast which and easy description, describe them in the should be regarded by a religious society as catalogues as "statuary," or "composition a desirable acquisition, and shall be classi-statues." It seems to us they answer the |