that they shall be original, in oil, mineral, water, or other colors, and that not more than two replicas or reproductions of the same shall enjoy the same privilege. It is provided also that—

* *

* * * the terms "sculpture" and "statuary" as used in this paragraph shall be understood to include professional productions of sculptors only And further that

*

* the words "paintings" and "sculpture" and "statuary" as used in this paragraph shall not be understood to include any articles of utility, nor such as are made wholly or in part by stenciling or any other mechanical process. And also that

* the words "etchings," "engravings," and "woodcuts" as used in this paragraph shall be understood to include only such as are printed by hand from plates or blocks etched or engraved with hand tools and not such as are printed from plates or blocks etched or engraved by photochemical or other mechanical processes.

It was thought, probably, that these limitations on paintings, statuary, sculptures, and etchings, engravings, and woodcuts would insure the free introduction of a high class of work, in fact would take the place of a provision that they should be works of art. In our opinion it was an oversight when the imports above set forth were provided for that they were not limited to works of art. It will be observed, however, that the provision for sketches in pencil or water colors has no limitation in this paragraph except that of originality. As suggested by us in the Baumgarten case, G. A. 8134 (T. D. 37514), we are of the opinion that the productions mentioned in paragraph 652 and its successor, paragraph 1704 of the act of 1922, should be required to be works of art.

It will be noted also, apropos of this case, that water-color paintings and water-color sketches or drawings are provided for in the paragraph. Clearly there was a distinction between the two in the minds of Congress when this act was passed.

A sample of the importation was introduced in evidence. It is marked illustrative, but is declared by the plaintiffs to represent in all essential particulars the importations. There is also a picture attached of a portion of a woman's gown made of the fabric to be manufactured after the pattern of the importation. The exhibit shows the picture to be a plain, brownish-gray surface upon which are imposed blue and red flowers in clusters or panels, together with a brown vine making a narrow vertical stripe. Altogether the largest portion of the area covered by the sample is the flat surface or background above described, in water color laid on with a brush. The flowers and vines are also all laid on with a brush. If a pencil were used in any way it is perceptible only at the borders and was employed in the same way and for the same purpose that it is employed in the

production of any painting, whether oil, water, or mineral, furnishing the merest outline of the painting.

It may be under the decisions of the court that this importation may be found to be entitled to free admission as a sketch or drawing in water color. It is artistic, but in our judgment does not fulfill that requirement imposed upon a work of art to entitle it to be admitted free of duty into the United States. Following the liberal tendency manifested by the decisions, the most recent being reported as Cheney Bros. v. United States (12 Ct. Cust. Appls. 195, T. D. 40172) there still is, in our judgment, one obstacle which has not been overcome in this case, to wit, the requirement that these shall be original. It is true the plaintiffs produced a witness who testified that the importations were produced by artists. He testified to their artistic qualities, also with reference to what some one told him as to their originality, but the record, in our judgment, falls far short of establishing the originality of these productions. In order to show that and entitle the importation to the privilege and advantage of free entry, it requires something more than hearsay testimony. Positive and convincing testimony is all in our opinion which is entitled to consideration in this case. We do not think the plaintiffs have shown the merchandise to be original.

Protest 10145-G was not filed in time. It is therefore dismissed. Protest 17384-G does not appear to be mentioned in the testimony anywhere, and would therefore be overruled for lack of proof. We are of the opinion that the other three protests should be and the same are hereby overruled because we do not think the plaintiffs have shown the merchandise to be original.

(T. D. 41670)

Surgical forceps-Surgical instruments

THE KNY-SCHEERER CORPORATION OF AMERICA v. UNITED STATES Surgical forceps are properly dutiable at the rate of 45 per cent ad valorem under paragraph 359 of the act of 1922 as surgical instruments, as claimed by plaintiff, rather than at the rate of 60 per cent ad valorem under the provision in paragraph 354 of said act for "hand forceps * by whatever name known," as classified by the collector.

* *

United States Customs Court

Second Division

Protests 53135-G, etc., against the decision of the collector of customs at the port of New York [Reversed.]

(Decided July 7, 1926)

Hamilton & Stratmann (William P. Hamilton, jr., and Ernest W. Stratmann of counsel) for the plaintiff.

Charles D. Lawrence, Assistant Attorney General (John A. Kemp, special attorney), for the United States.

Before FISCHER, HOWELL, and WELLER, Justices; WELLER, J., not participating

FISCHER, Associate Justice: These protests raise this question: Are surgical forceps dutiable at the rate of 60 per cent ad valorem under paragraph 354 of the act of 1922 as hand forceps, as here -classified by the collector, or at but 45 per cent ad valorem under paragraph 359 of said act as surgical instruments, as claimed by the ¿plaintiff?

At the outset it is but fair to state that the collector's classification merely followed our ruling in G. A. 8730 (T. D. 39967). But it is also true that such ruling was based solely upon the uncontradicted report of the appraiser that the articles there in question consisted, among other things, of "hand forceps," a term the ambiguity of which was not made apparent to us at the time. In fact, it was one of those cases (and their number is legion) in which important questions of law were submitted for decision without the slightest attempt having been made by the importers to prove the precise character of the merchandise, with a view to establishing its correct tariff status. We are now satisfied that if we there had had the benefit of the present full and complete record of all the facts, to say nothing of the equally exhaustive and learned briefs on the law with which we are here favored, it is entirely likely that we would have reached a different conclusion.

We therefore express our appreciation of the care and thoroughness with which this case has been prepared and presented, and of the scholarly and exhaustive treatment by counsel in their briefs of the propositions of law involved, such as the construction and interpretation of the language of the statute and of the congressional intent upon which this case must necessarily be determined. Under the heavy pressure of greatly congested calendars, it is indeed gratifying, and likewise a distinct aid to this court, to consider cases which have been thus carefully prepared and presented with a clear exposition of the issues involved.

The pertinent provisions of the competing paragraphs under consideration read as follows:

PAR. 354. Penknives, pocketknives, clasp knives, pruning knives, budding knives, erasers, manicure knives, and all knives by whatever name known, * * valued at not more than 40 cents per dozen, 1 cent each and 50 per centum ad valorem; * * * valued at more than $6 per dozen, 35 cents each and 55 per centum ad valorem; * * * cuticle knives, corn knives, nail files, tweezers, hand forceps, and parts thereof, finished or unfinished, by whatever name known, 60 per centum ad valorem: Provided, That any of the foregoing, if imported in the condition of assembled, but not fully finished, shall be dutiable at not less than the rate of duty herein imposed upon fully finished articles of the same material and quality, but not less in any case than 15 -cents each and 55 per centum ad valorem: * *

PAR. 359. Surgical instruments, and parts thereof, composed wholly or in part of iron, steel, copper, brass, nickel, aluminum, or other metal, finished or un

finished, 45 per centum ad valorem; dental instruments, and parts thereof, composed wholly or in part of iron, steel, * ** 35 per centum ad valorem:

We experience no hesitancy in holding inapplicable to the present merchandise our ruling in G. A. 8730, supra, because, as before stated, we there relied solely upon the appraiser's statement that the articles actually consisted of hand forceps, and since we had no proof to the contrary we naturally assumed that the words "hand forceps," had at least some meaning in the surgical instrument trade of this country. However, the present record definitely precludes longer indulging any such assumption, as it contains the uncontradicted testimony of a number of thoroughly qualified commercial witnesses which conclusively proves (1) that the term "hand forceps" is completely foreign to such trade and never has been used or mentioned therein; (2) that on and prior to September 22, 1922, there was definitely, uniformly, and generally known, recognized, and thoroughly understood throughout said industry the term "surgical forceps;" (3) that the forceps comprehended thereby constituted one of the principal subdivisions of the general class of articles commercially known as surgical instruments; (4) that all of the articles here under protest were included within the specific designation "surgical forceps" and were likewise embraced within the general term "surgical instruments"; and (5) that such surgical forceps were then and are now used exclusively in the science of surgery and are incapable of any other use.

Neither did we have in the decided case the evidence which we now have that there are in trade and commerce certain types of forceps which may well come within the scope of the term "hand forceps," since they are of the same general class of articles as those which are specifically enumerated in paragraph 354; that is, articles generally used for manicuring and pedicuring work.

In our cited ruling (G. A. 8730) we concurred in the view of the law expressed by the Treasury Department in T. D. 39409 that "surgical scissors were classifiable for tariff purposes according to their use as surgical instruments under paragraph 359," and "that the eo nomine provision for scissors in paragraph 357 should not prevail over a provision, the language of which was indicative of the congressional intention that the classification of certain articles should be determined solely by the use to which such articles are devoted." But we held that we were not there "convinced that such principle is equally applicable to the provision in paragraph 354 for hand forceps, in view of the qualifying language thereof," which reads "hand forceps, and parts thereof, finished or unfinished, by whatever name known." That language we construed as allcomprehensive and as intended to embrace every kind of hand

forceps regardless of name or particular use, with the same force and effect as though the names thereof had been specifically mentioned in said paragraph 354, and we cited as our authority the doctrine laid down in Mason v. Robertson (139 U. S. 624), which was applied to a tariff provision for "all chemical compounds and salts, by whatever name known."

*

While that doctrine is well established as a general principle of law, we are now satisfied that its application to the words "hand forceps * *by whatever name known," with the result that surgical forceps were held to be classifiable as hand forceps, was erroneous. The error was due to the fact that this court had no evidence before it as to the meaning, commercial or otherwise, of the words "hand forceps," and on the assumption that the expression was intended to embrace all forceps, by whatever name known, operated by hand; and not having any proof that the designation "hand forceps" is wholly unknown in the surgical instrument trade, this court quite naturally reached the conclusion that the case fell within the rule of Mason v. Robertson, supra, and Stone v. United States (7 Ct. Cust. Appls. 124; T. D. 36453).

In view of the facts now clearly established of record we can see that the cases which were there cited as decisive of the issue are here plainly distinguishable. For instance, in the Mason case there was no question as to the meaning of "all chemical compounds and salts, by whatever name known;" and in the Stone case the presumed correctness of the collector's classification was not disturbed, because there was not sufficient evidence in the record to overcome the presumption; and so, in that case, an eo nomine provision, to wit, "typewriter paper," yielded to a general provision for parchment paper, to which were annexed the words, "by whatever name known." Had it been definitely shown that the merchandise covered by the protest, in the Stone case, was intended for use as typewriter paper, and for no other use, the result might well have been different.

On the other hand, in the present case there is, or rather has been, much question as to the meaning of the words "hand forceps." However, considerable of this confusion and uncertainty was cleared away by the testimony of plaintiff's witnesses, all of whom are men who have had long years of experience, ranging from 33 to 48 years, in the wholesale surgical-instrument business and who are therefore exceptionally well qualified to testify as to all matters pertaining to that industry. They established conclusively that surgical forceps are commercially known as "surgical forceps" and are included within the general class of merchandise commercially designated "surgical instruments." For purposes of more specific identification, such forceps, like other surgical instruments, are frequently referred