United States v. Gunther

WOODS, Circuit Judge (after stating the facts). The ruling of the circuit court in Marine v. Robson, 47 Fed. 34, that a single article, when imported for the purpose of being added to a collection of antiquities, is exempt from duty, is inconsistent with the decision of the circuit court of appeals in Marquand’s Case, decided in connection with In re Glaenzer and In re Stern, supra (U. S. v. Glaenzer, 5 C. C. A. 225, 55 Fed. 642, 14 U. S. App. 331). The latter decision is the more authoritative, and, in our opinion, the better considered. In Stern’s Case, in the circuit court, Judge Wallace declared his opinion that a “collection” means something more than two articles, and accordingly held to be subject to duty two tapestries, which, though purchased with two other tapestries, had been designedly separated from them and shipped in a different vessel, which came to port one day earlier than the vessel in which were the other two. In reversing this decision the circuit court of appeals, expressing no direct opinion whether under the statute two articles may constitute a collection, simply said, “Under the uncontroverted finding of the board of general appraisers, and .under the testimony of Mr. Stern, we cannot say that these four tapestries, useless for anything but as a collection of antiquities, did not constitute a collection.” Revenue laws being subject to strict construction, it may be that under this statute no more than two articles are necessary, to constitute a collection; but we need not decide the point, since, in our judgment, this case is controlled by another consideration. It is an established rule, declared and illustrated in many cases, that an article made dutiable by its specific designation will not be affected by general words of the same or another statute which otherwise would embrace it. Arthur v. Rheims, 96 U. S. 143; Robertson v. Glendenning, 132 U. S. 158, 10 Sup. Ct. 44; Vietor v. Arthur, 104 U. S. 498; Homer v. Brown, 1 Wall. 486; Reiche v. Smythe, 13 Wall. 162. Paragraph 465 of the act of October 1, 1890, is specific in respect to paintings, and, by the rule stated, excludes them from the general word “antiquities” in paragraph 524, even if the phrase, “and other collections of antiquities,” as it there follows “cabinets of old coins and medals,” could be deemed, under the maxim “noscitur a sociis,” to include paintings. “Paintings in oil or water colors, and statuary, not otherwise pro 501 vided for in this act, fifteen per centum ad valorem,” is the provision. If, instead of making collections of antiquities free, paragraph 524 had imposed upon them a higher duty than 15 per centum, it would be unquestioned that paintings, however old, would he subject only to the duty imposed upon them by name. The rule must apply alike whether the effect he to subject an article to duty, or to exempt it. It cannot well be said of paintings produced before the year 1700, Tather (ban of later productions, that they “are suitable for souvenirs or cabinet collections”; and if it was the intention to exempt paintings of any class or description from duty, presumably, the conditions .of exemption would have been declared in the clause in wbicli paintings are mentioned, or, if elsewhere, then not by implication, but by ■ specific and unmistakable expression. For instance, in paragraph (177 “paintings, drawings, and etchings, specially imported in good faith tor 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;,” are made free. The act provides no specific tax on pic-i.uie frames, and it may well he that the one in question, which was subjected to duty under paragraph 230, which embraces “house or cabinet furniture of wood, wholly or partly finished, manufactures of wood &c.,” could be called properly an antiquity; but, as it was not imported as a part of a collection of antiquities, — the painting being excluded from that category, — -it was subject to the. duly charged and collected. The judgment of the circuit court is therefore reversed.