2. It is not free of duty under paragraph 1774 of said act as part of a shrine, as it is intended for use, and is in fact used by being placed in a niche in the rear wall of a Methodist Episcopal Church under stained glass windows behind the choir benches and the rostrum for the clergyman. The portion of the church containing this tapestry does not come within the definitions of "shrine."

3. It is not dutiable as assessed by the collector as tapestries wholly or in chief value of wool, at 50 cents per pound and 60 per centum ad valorem under paragraphs 1109 and 1119 of said act.

4. Inasmuch as this tapestry, made in the Munchenen-Gobelin Factory in Munich, Germany, is woven upon the same principle and by the same technique as Gobelin tapestries made on looms in Paris, France, and is in fact "entirely like the Gobelin weave", and not an imitation Gobelin tapestry, it is free of duty under paragraph 1812 of said act, as "Gobelin tapestries used as wall hangings" by virtue of article VII of the treaty between the United States and Germany of December 8, 1923, whereby the favor, privilege, and immunity granted "any like article" the manufacture of a third state are "simultaneously and unconditionally, without request and without compensation" extended to Germany. Citing cases.

BROWN, Judge (concurring in result), holds:

1. An exquisite picture of the "Last Supper" made, expressly as a gift to a church, of the finest grade Gobelin tapestry under the directions of a competent artist from a colored cartoon prepared by him, showing creative genius in the color arrangement as well as in other respects, showing also creative genius by the hand workers in bringing out the expression of the faces, is free of duty as a "work of art” under paragraph 1810, Tariff Act of 1930, or else it is free of duty under our commercial treaty with Germany. It comes under Mr. Justice Brown's expression in United States v. Perry, 146 U. S. 71, "The fine arts, properly so-called, intended solely for ornamental purposes", as well as under the expression "Free Fine Arts" of the later cases. It is religious art of the highest devotional type only decorative incidentally, and in no sense industrial art. The cases on the subject reviewed, analyzed, and applied.

2. The nature of the importer's statutory suit in customs, as consisting of an action for the recovery of money taken illegally as customs taxes, is stated by Judge Brown as his reason for signing the judgment prepared by Judge Sullivan herein, declaring this merchandise entitled to free entry under the favorednation clause of the German treaty, as applied to paragraph 1812.

MCCLELLAND, Presiding Judge (dissenting in part), concurs in the first, second, third, and fourth conclusions of Judge Sullivan, differing only as to the fifth, in that he holds that the tapestry in issue is not entitled to free entry under the application of the German treaty of December 8, 1923, inasmuch as (1) the treaty was superseded by paragraph 1812, Tariff Act of 1930 (citing United States v. Lee Yen Tai, 185 U. S. 213, and cases therein cited), and (2) the tapestry in issue is not a “like article" to the Gobelin tapestries provided for in paragraph 1812, supra.

United States Customs Court, First Division

Protest 643630-G against the decision of the collector of customs at the port of Philadelphia [Judgment for plaintiff.]

(Decided January 24, 1936)

Harper & Matthews (Harold Harper and Arthur R. Goetjens of counsel) for the plaintiff.

Joseph R. Jackson, Assistant Attorney General (William Whynman and Marcus Higginbotham, Jr., special attorneys), for the defendant.

Before MCCLELLAND, SULLIVAN, and BROWN, Judges; BROWN, J., concurring; MCCLELLAND, P. J., dissenting

SULLIVAN, Judge: The subject of this cause of action is described by the appraiser at the port of Philadelphia as—

one tapestry to be used as a wallhanging, composed of wool, silk, and cotton, made in the Munchenen-Gobelin Factory in Munchen, Germany.

It was assessed with duty at 50 cents per pound and 60 per centum ad valorem under paragraphs 1109 and 1119 of the Tariff Act of 1930. The plaintiff makes the following claims in his protest, either originally or by amendment thereto:

1. That it is free of duty under paragraph 1812 of said act as a Gobelin tapestry used as a wall hanging; or

2. Under paragraph 1810 as a work of art, imported expressly for presentation to an incorporated religious society; or

3. Under paragraph 1774 of said act as part of a shrine; or

4. That it is dutiable under paragraph 1547 (a) at 20 per centum ad valorem as works of art; or

5. That

being the same merchandise as is entitled to free entry under paragraph 1812 when imported from, and manufactured in certain factories in France [it] is entitled to free entry under Article VII of the Treaty between the United States and Germany of December 8, 1923, whereby the favor, privilege, and immunity thereafter granted the goods of a third state are simultaneously and unconditionally extended to Germany.

Under paragraph 1119, upon which the collector based his action, it is provided:

PAR. 1119. Tapestries and upholstery goods (not including pile fabrics), in the piece or otherwise, wholly or in chief value of wool, shall be subject to the applicable rates of duty imposed upon woven fabrics of wool in paragraph 1108 or 1109. (Italics ours.)

The pertinent portion of paragraph 1109 is as follows:

*

PAR. 1109. (a) Woven fabrics, weighing more than four ounces per square yard, wholly or in chief value of wool, * * valued at more than $2 per pound, 50 cents per pound, and 60 per centum ad valorem.

Three witnesses were called by the plaintiff. Briefly, they testified as follows:

Mr. Willet, the importer of this merchandise, testified that he is a stained glass artist; that he designed the tapestry in question; that "the general motif was taken from Leonardo da Vinci's 'Last Supper' " in Milan, Italy; that Mrs. Kresge gave him an order for the production of a tapestry for the Metropolitan Methodist Episcopal Church in Detroit; that this tapestry was to decorate "a niche in the chancel"; that he made a sketch, submitted it to the church and Mrs. Kresge;

that it was approved with slight changes; and this "is the only time" he worked on a tapestry. He described what he did as follows:

I made a water color sketch to scale for a tapestry to fill this niche in the church between the reredos and the window there. That was to scale. That was in color. Its general motif was Leonardo da Vinci's "Last Supper". It had a border background around it to tie it in with the other decorations in the church. This sketch was approved.

He further testified that the colors of the original "Last Supper" were faded, and only traces thereof remained, so that the colors in the sketch in question were original as far as he was concerned; and that he made a full-sized painting of this sketch on burlap with aniline dyes. It was then placed in the church "just as the final tapestry would be", so that the effect could be studied; that with slight changes the result was finally accepted, and he decided to have the tapestry made in the Gobelin factory in Munich; that, believing he would not be required to pay duty on the tapestry, he made contracts with the Gobelin factory in Munich and with Mrs. Kresge accordingly; that the full-sized painting and the water-color sketch were sent to the factory, and subsequently the border, which had been changed, together with a letter giving full details; that the tapestry was produced and imported and duty paid thereon; and that after some delay— it was erected in position in the chancel of the Metropolitan Methodist Episcopal Church in Detroit.

A photograph of this tapestry, as it was erected in the church, was received in evidence as Illustrative Exhibit A, and is appended hereto. It was further testified that this tapestry is specially lighted, and "it is the focal point of worship in the church"; that "it is the point of adoration in the church."

The original tapestry was produced, and the witness testified that the border is all his own design.

It was conceded that an offer of presentation of this tapestry to the church was made and accepted.

Some testimony was introduced to indicate that this tapestry is part of the altar in the church, but doubt on this point is indicated by the following question by the court and the answer thereto:

Judge DALLINGER. Isn't it a fact that the Methodist Church usually do not have an altar; merely the chancel and the organ and the communion tables are down in front, and the remaining part between the reredos and the communion table is all part of the sanctuary?

The WITNESS. That is the case here. It is really all part of the sanctuary. Plaintiff's witness Flint testified he is a parishioner of the Metropolitan Methodist Episcopal Church in Detroit, and attends services there; that he has seen the importation in question in position in the church; that Illustrative Exhibit A is a picture of the chancel of that church with the tapestry in question in position "but it does not