Mission of San Gabriel v. United States

Donlon, Judge: The Mission of San Gabriel, of San Gabriel, Calif., imported, in 1958, five wooden boxes, the contents of which were entered as stained glass for a house of worship. The importer claims that this glass is exempt from duty under paragraph 1810 of the Tariff Act of 1930. The official papers were not offered in evidence at the trial, but the record makes clear the nature of the controversy. The collector at Los Angeles, in compliance with a published Customs Bureau directive (C.I.E. 1763/57, September 11, 1957), of which we may take judicial notice, rejected the claim for duty free entry on the ground that panels, made from pieces of colored glass set in cement, and not leaded together, are dutiable under paragraph 218(f), and not duty free under paragraph 1810. However, if they were leaded, the directive stated that the glass might be free under paragraph 1810. Since these panels were cemented, not leaded, duty was assessed at the modified paragraph 218(f) rate of 30 per centum ad valorem. Plaintiffs protested, and now seek our judgment directing refund of the duty exacted by the collector. In its protest, the Mission makes two claims that are additional to the entry claim of paragraph 1810 exemption. The stained glass of this importation is now also claimed to be duty free, alternatively, under paragraph 1774 or under paragraph 1809. We defer our consideration of these alternative claims until we have disposed of the paragraph 1810 claim. Paragraph 218 (f), as modified by the General Agreement on Tariffs and Trade (TJX 51802), the provision of the collector’s classification, provides as follows: Table and kitchen articles and utensils, and all articles of every description not specially provided for, composed wholly or in chief value of glass, blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground (except such grinding as is necessary for fitting stop- ' pers or for purposes other than ornamentation), painted, printed in any manner, sandblasted, silvered, stained, or decorated or ornamented in any manner *. * *: * * * * * * * Other-500 on each article or utensil, but not less than 30% nor more than 50% ad val. — 159 — Paragraph. 1810 grants exemption from duty for— Works of art * * * including stained or painted window glass or stained or painted glass windows which are works of art when imported to be used in houses of worship, valued at $15 or more per square foot * * *; but such exemption shall be subject to such regulations as the Secretary of the Treasury may prescribe. It has been stipulated by counsel that the imported glass of this suit was valued at over $15 per square foot. It has also been stipulated that there was compliance with the regulations of the Secretary of the Treasury. It has not been stipulated either that the glass was imported to be used in a house of worship or that it is a work of art. There is evidence that the imported glass was created in Chartres, France, by a well-known artist in the medium of stained glass, especially for the Chapel of the Annunciation in the Mission of San Gabriel, and that, on importation, the glass was installed in that chapel. There are no proofs to the contrary. We hold that this glass was imported to be used in a house of worship. The controversy, so far as it has to do with paragraph 1810, revolves chiefly around the issue whether the glass of this importation is, in fact, stained window glass in the tariff sense. If we hold that it is, there will remain the subsidiary issue, under paragraph 1810, as to whether it is stained window glass which is a work of art. Defendant’s brief challenges plaintiffs’ proofs that the glass from which the window glass was made, was colored in a manner recognized as staining. (Defendant’s brief, page 4.) Defendant adduced no proofs on trial. Plaintiffs did. One of plaintiffs’ witnesses was the architect of the chapel for which the window was created and in which it was installed, Mr. Earl Trudeau. Mr. Trudeau, testifying as to successive steps in the creation of this window for the chapel, said that the Chartres artist, Mr. Loire, selected glass and put “those selections of colored, stained glass over the design * * (R. 15.) There is repeated reference to the use of stained glass. Questioned more specifically, the witness said that the glass was not painted, but that the stain was put into the glass at the time when the glass was manufactured, and that it is part of the material out of which the window was created. (R. 24.) We find no support in the record for defendant’s contention that the glass from which the imported panels were created is not what is known as stained glass. On the evidence of record, the merchandise of this importation was not imported as a window, but consisted, at the time of importation, of five cases of panels, in upwards of 30 sections, made from stained glass. — 160 — In C.I.E. 651/58, April 29, 1958, W. E. Higman, Chief, Division of Classification and Drawbacks in the Customs Bureau, reaffirmed the prior C.I.E. ruling of September 11, 1957, supra, in a letter which he addressed to Mr. J. Earl Trudeau. While the street address of Mr. Trudeau, as stated in the chief’s letter, is First and Bay Streets, Alhambra, Calif., and the witness Trudeau on the stand gave his address as 40 West Bay Street, Alhambra, Calif., there is reasonable ground to suppose that the Mr. Trudeau who was the addressee of the chief’s letter and the Mr. Trudeau who was architect of the Mission Chapel, and who testified at the trial, are one and the same person. There is also ground to suppose that the “imported panels of thick, chipped, colored glass joined together by cement,” subject of the chief’s letter to Mr. Trudeau, published in C.I.E. 651/58, supra, are the glass panels of this litigation. Plaintiffs offered the testimony of four witnesses and also introduced into evidence certain exhibits. Defendant adduced no evidence. Both parties filed briefs. We have had also the assistance of a brief that was filed by amicus curiae in support of defendant’s contention. Except for defendant’s argument that the glass ingredient of the imported panels was not stained glass, as to which we have ruled against defendant on the evidence of record before us, the gist of defendant’s position appears to be that, when pieces of stained glass an inch thick are bound by cement, they cannot be stained window glass in the tariff sense, but that such glass may be stained window glass, for tariff purposes, if lead is the binder used. The testimony of plaintiffs’ witnesses describes how these panels were made and also points out the differences between the method of their creation and that of stained window glass of the conventional type. In both, the artist creates the design, and selects flat glass in the colors and size of pieces he desires in order to develop his design. In both, the selected glass pieces are laid over the design. In the conventional type of window, the glass pieces used are usually about a quarter inch thick. In this window, the glass pieces used were an inch thick. In a conventional window, the glass pieces are not chipped. They remain as flat pieces of stained glass. In this window, the flat pieces of stained glass were chipped. The process of chipping is described in detail in the record. This is a phase of the artistic development of the window, since the facets “bring through more light just as facets of a diamond enhance the stone.” (R. 15.) In the conventional window, the thin flat glass pieces are usually soldered together with metal strips known as lead carnes. In this window, the glass pieces were united by cement, poured so as to preserve the artistic effect of the faceting. — 161 — There is no evidence that thin steel webbing is used in the stained glass itself, to add structural strength to conventional windows. There is evidence that steel webbing is used within the glass in some inch-thick windows. There is evidence that when inch-thick glass is used and the window surface is large, union of the glass pieces with lead carnes will not produce a weathertight window, whereas, in such cases, the use of cement to bind the glass pieces makes the window both structurally strong and weathertight, without lessening the artistic values of the window. There is evidence that inch-thick stained glass, in selected colors, grouped to compose an artistic design, faceted to bring through more light, and united with cement, is a recognized art form among stained glass window artists. We are to ascertain what Congress intended when it enacted paragraph 1810, and to apply that intention to the facts of record here. At the outset, it should be noted that there is eo nomine provision in paragraph 1810 both for stained window glass and for stained glass windows. In the dutiable provision, paragraph 230, which is not before us, the eo nomine provision is for stained glass windows “and parts thereof, not specially provided for.” What stained glass windows are not specially provided for, within the provision of paragraph 230, seems clear. They are those stained glass windows which are works of art, which are imported to be used in houses of worship, which are valued at $15 or more per square foot, and as to which there has been compliance with the regulations , of the Secretary of the Treasury. Such windows are specially provided for in paragraph 1810. What “parts” of stained glass windows are specially provided for, other than in paragraph 230 ? There is no other specific provision for parts of stained glass windows. The provision in paragraph 1810 is for stained glass windows, or for stained window glass. If effect is given to both paragraph 230 and paragraph 1810, as enacted by Congress, and we are not to ignore either, it seems clear that stained window glass, not imported as a window, but which is a work of art, which is imported to be used in a house of worship, which is valued at $15 or more per square foot, and as to which there has been compliance with the regulations of the Secretary of the Treasury, is stained window glass which is specially provided for under paragraph 1810, within the meaning of the not specially provided for parts provision of paragraph 230. In construing what was the intention of Congress, it is useful to refer to the Summary of Tariff Information, which was before Congress at the time when it was acting on the bill which became the law — 162 — that is to be construed. In this case, it is the Tariff Act of 1930. Schedule 2 of the summary (1929) on the Tariff Act of 1922, is entitled “Earths, Earthenware, and Glassware.” It was before Congress when the 1930 law was enacted. On pages 557 and 558 of schedule 2, there is summarized material with respect to stained and painted glass windows and parts thereof. In his letter to the architect, Mr. Trudeau, referred to, swpra, Chief Higman extracted five words from this 1929 summary, and cited those five words as support for his conclusion that, in enacting the free provision for stained glass windows in the 1930 act, Congress had in mind “the conventional church windows of flat stained glass in which the individual pieces of stained glass are joined together with lead.” The excerpted words, cited by Chief Higman in his letter, are “windows of colored, leaded glass.” A more complete citation of the tariff summary material throws a somewhat different light on the data before Congress, and illuminates some of the pitfalls in the chief’s selective citation. The 1929 summary presented to Congress a considerable amount of material on the production both of stained window glass and of stained glass windows. Much of that material seems to us helpful in resolving the issue now before us. The tariff summary states (pp. 557, 558) as follows: Description and uses. — Windows in colored leaded glass have long been known popularly and technically as “stained glass windows,” but the term is not accurate. Colorings in glass windows may be produced (1) by melting a glass batch containing metallic oxides; (2) by flashing — that is, melting a thin layer of colored glass onto a sheet of colorless glass; (3) by painting ceramic enamels, glosses, colors, and oxides on the glass which is then fired to effect enameling, staining, or coloring; (4) by painting with liquid gold and firing the pieces to fit the gilding; (5) by painting the glass with ordinary oil paint. Glass windows and designs are usually composed of smaller pieces of glass colored in any of the ways above mentioned and held together by soldered lead strips. Sometimes pictorial effects are obtained by painting on single pieces of glass. Production. — Raw materials used in the production of stained and painted, glass windows are antique, flashed, stained, colored, and decorated glass sheets; fluxes, enamels, pressed lead, cement, and steel framing. There are about 900 small shops dealing in stained and painted glass windows equipped to stain and burn glass. Besides these there are a number of concerns that cut and assemble windows only. The production of assembled windows and parts in this country consists mainly of original art work. Cutting is. a purely mechanical process, whereas selecting stainings and painting requires a knowledge of the properties of colors and are usually done by highly-trained technicians and artists. Glazing is the process of assembling the pieces of glass, which have been separately through the other processes* and binding them together with strips of metal, the ends of which are soldered. The principal concerns engaged in painting, staining, and assembling decorative glass windows are located in New York, Chicago, Pittsburgh, and northern New Jersey. Production is estimated at about seven and one-half million dollars a year. — 163 — Imports. — There is very little importation of completely assembled stained-glass windows. Imports consist largely of colored glass and parts of windows in form for assembling and erecting, which come principally from Germany. [Emphasis supplied.] The 1929 summary does not repeat, under paragraph 1810, the material that has been quoted here with respect to the production of stained glass and stained glass windows. Under paragraph 1810, consideration in the summary has to do chiefly with the requirement that stained window glass and stained glass windows shall be works of art in order to be entitled to free entry. The material before Congress, as to lead carnes, is not quite so comprehensive as defendant appears to think. The description relied upon by Chief Higman is said in the summary itself (and in the same sentence) not to be “accurate.” Congress was made aware, in the tariff summary, that glass windows and designs are usually composed of small pieces of stained glass which are held together by soldered lead strips; but the very statement that this is usual indicates that it was recognized that something else also was possible. What is usually done, to be sure, is what can most often be expected; but it is hot, by definition, the exclusive method of doing the thing. Indeed, in detailing those raw materials, besides the glass, that are used in the production of stained glass windows, cement, the binder that was here used, is a material enumerated in the 1929 tariff summary. Defendant appears to argue that the effect of paragraph 1810 is identical with what it would have been if Congress had inserted the limiting words “with lead carnes” or “leaded” as part of the eo nomine provision for stained window glass and stained glass windows. Congress did not do this. Granted Congress understood that lead" carnes were then the “usual” binder in stained window glass and stained glass windows, there is nothing to suggest an intention on the part of Congress to exclude from paragraph 1810 (or paragraph 230, as the case may be) window glass or glass windows made, in fact, from stained glass and in which some other material than lead was used as the structural and artistic binder, or that Congress intended that nonleaded windows of stained glass should be classified under the same provision as glass table and kitchen articles and utensils. It is a well-accepted principle of the construction of tariff laws that Congress looks to the future. “It must be remembered that tariff acts are intended to bring within the purview of their provisions imported merchandise which is described therein, notwithstanding the fact that such merchandise, at the time of the law’s enactment, was not known in our international commerce. It is well established that tariff statutes are made for the future as well as for the present.” United States v. L. A. Salomon & Bro., 22 C.C.P.A. (Customs) 490, at page 495. — 164 — Citing Newman v. Arthur, 109 U.S. 132, our appeals court, in the Salomon case, quoted the United States Supreme Court as follows: The fact that at the date of the passage of the act goods of the land in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in the present ease, the language fairly and clearly includes them. The provision in paragraph 1810 is for stained window glass and stained glass windows. Glass, such as Congress understood to be stained glass, was used to make these glass window panels. Congress understood that lead carnes were the usual binder in a stained glass window, but it did not limit the eo nomine provision to stained window glass and stained glass windows that are leaded. It provided for all stained glass windows, either in paragraph 230 or in paragraph 1810. Congress had before it data showing that cement might be a raw material used. We hold that the stained window glass of this importation is within the eo nomine provision of paragraph 1810, if it is a work of art. The evidence of record adduced by plaintiffs, and not contradicted by evidence adduced by defendant, is that this window is a work of art. The California architect who collaborated with the French artist in glass, Gabriel Loire, of Chartres, testified. He told of the creation of the design. He established Gabriel Loire as one of the foremost artists now working in the medium of stained glass. He and other witnesses described the window, its concept, and design. There is opinion testimony of experts who have viewed the window, that it is a work of art. There are also in evidence two photographs of the window (exhibits 1 and 2). While in themselves these photographs do not establish the artistic quality of the window, they tend to corroborate the opinion evidence of witnesses who testified. Indeed, defendant makes no substantial argument that this window glass is not a work of art, resting its case rather on the ground (which we have already decided) that it is not the kind of stained window glass which Congress intended to include in paragraph 1810. As to plaintiffs’ alternative claims, there is precedent for ruling that a stained glass window is not a mosaic. A mosaic is a “surface decoration made by inlaying in patterns small pieces of variously colored glass, stone, or other material” [emphasis supplied], Webster’s New International Dictionary, second edition (1956); United States v. Columbo Co., 21 C.C.P.A. (Customs) 177. In Frei Art Glass Co. v. United States, 15 Ct. Cust. Appls. 132, the provision for stained window glass was held not to include mosaics. Plaintiffs have not pressed their claim under paragraph 1809. — 165 — The claims under paragraphs 1774 and 1809 are overruled. The claim under paragraph 1810 is sustained. Judgment will be entered accordingly.