description has to do with linseed oil but the same process was used in the production of the involved merchandise. It reads as follows: Linseed oil is mixed with about 25% water and is heated for 36 hours in a closed tank (with only a small outlet for steam), while adding 1% acid decomposing oil [usually a suphonic acid], which acts as catalyst. After about 36 hours the steam is shut off and the tank is left undisturbed for a few hours. The glycerin water, which has a greater specific gravity than the fatty acids, settles on the bottom of the tank, while the fatty acids float on top. The glycerin water is now tapped off and the fatty acids are tapped (drawn-off) into the fatty acid tanks in order to thereupon be transferred into barrels or drums for shipment. This is the only operation to which the oil is subjected.

The fatty acid yield of the Twitchell process amounts to more than 90% of the free fatty acids contained in the oil. Its advantage over the natural process is great, not only because in the latter process a much smaller yield is produced, but also because the natural process takes a very much longer time to operate. It appears that in the process of nature, esterification and hydrolysis are continuous, that is, sometimes esterification is present and at other times hydrolysis. Consequently, the fatty acid content is not constant.

It has been and is the contention of counsel for appellants that the Twitchell process does not differ from the process of nature in either character or accomplishment and that if the expressed oil be left to itself, by natural law the hydrolysis takes place. For that reason, counsel urge that the Twitchell process is not a manufacturing operation and that the involved merchandise is not different from that which is produced by nature and, therefore, the involved fatty acids are not manufactured articles.

The trial court, in its decision, cited the case of United States v. Stone & Downer, 12 Ct. Cust. Appls. 293, T. D. 40296, in which it was held that as a general rule a mere cleaning process for the purpose of isolating an article of commerce from impurities and not advancing the article beyond a clean state or condition and not affecting the article per se, cannot properly be said to be a manufacturing process. The trial court stated that in its opinion "a cleaning process cannot go much beyond" what was said in the Stone & Downer case, supra, and was of opinion that the Twitchell process, as hereinbefore set out, extends far beyond a cleaning process. In that connection, the trial court stated:

To be sure, it is decomposing a compound into its parts, such as would happen naturally over a long period of time, but in the first place there has been a chemical change in the original article, and in the second place a new article emerges separate and apart from the original oil, a condition in which it did not appear before the hydrolysis took place.

There can be no question but that the imported merchandise is produced by a manufacturing process and, therefore, regardless as to the identity of the articles produced by that process with that which

is produced in nature, such identity is immaterial. Unquestionably, the imported goods are manufactured articles and were properly so classified by the collector.

A reading of the cases of John v. Carr & Sons, Inc. v. United States, 25 Cust. Ct. 77, C. D. 1267; Frazee v. Moffitt, 18 Fed. 584; In re Herman Keck Mfg. Co., 8 Treas. Dec. 316, T. D. 25597; In re Wells Fargo & Co., 13 Treas. Dec. 669, T. D. 28200; Cone & Co., Inc. v. United States, 14 Ct. Cust. Appls. 133, T. D. 41672; Merck & Co. v. United States, 5 Ct. Cust. Appls. 347, T. D. 34549; United States v. Sheldon & Co., 2 Ct. Cust. Appls. 485, T. D. 32245; Hampton Jr. & Co. v. United States, 6 Ct. Cust. Appls. 392, T. D. 35926; United States v. W. S. Makaroff et al., 16 Ct. Cust. Appls. 531, T. D. 43263; United States v. Half Moon Mfg. & Trdg. Co., 24 C. C. P. A. (Customs) 232, T. D. 48668; Standard Varnish Works v. United States, 59 Fed. 456; and United States v. Schrock & Squires, 5 Ct. Cust. Appls. 444, T. D. 34974, all of which have been cited by counsel for appellants to sustain their contention, are not in point under the facts of the instant case.

The judgment of the United States Customs Court is affirmed.

WM. S. PITCAIRN CORP. v. UNITED STATES (No. 4663) 1

EARTHEN AND CHINA, OR PORCELAIN, FIGURINES

WORKS OF ART

1

-CLASSIFICATION

An importation of (1) earthen and (2) china, or porcelain, figures, often called figurines or statuettes, imported from England, were classified as follows: The earthen figurines of the first type under paragraph 211, Tariff Act of 1930, with duty assessment at 10 cents per dozen pieces and 50 per centum ad valorem, and those of the second type, composed of china or porcelain, under paragraph 212 as modified by the trade agreement with the United Kingdom, with duty assessment at 45 per centum ad valorem. The claim on behalf of appellant is that both classes of figurines are subject to duty assessment at only 20 per centum ad valorem, because classifiable under paragraph 1547 (a) of the 1930 act. Held that:

(1) The phrase "works of art," used in paragraph 1547 (a), contemplates that the original statuary or sculpture provided for in the paragraph shall be the work of professionals.

(2) In the Downing & Co., case, 6 Ct. Cust. Appls. 545, the court very properly went to common understanding to determine what was meant by "sculptors" and "sculpture" as used in paragraph 376, Tariff Act of 1913, predecessor of paragraph 1547 (a), and, in that regard, it is followed with respect to paragraph 1547 (a).

(3) The fact that the original model of an object such as a figurine must be the work of a professional sculptor in order to conform to the legislative intent respecting what shall be regarded as a work of art within the meaning of paragraph 1547 (a) does not mean that the copies, replicas, or reproduc1 C. A. D. 458.

tions of first figures or figurines, coming from the molds must receive the inspection, supervision, and care of a professional sculptor in order to obtain classification under that paragraph.

(4) The Congress, in paragraph 1807, sought to protect the aesthetic taste of peoples against commercialization of that fine art which is the product of a somewhat rare and very special genius. There was no such motive with respect to figurines of the kind involved here. Although many of them have a genuine beauty and none of them was created for utility, they were intended to be and are articles of common commerce.

(5) The fact that the Congress which passed the Tariff Act of 1930 saw fit to add to the prior law the provision “valued at not less than $2.50” as applied to "copies, replicas or reproductions" is persuasive that there was no intention that the services of a professional sculptor should be obtained for work on an article of that low value.

(6) It is thought that it was not intended in the case of Downing & Co., 6 Ct. Cust. Appls. 545, to hold that copies, etc., of figurines, which figurines are themselves the work of professional sculptors, also must be the work of professionals. The fundamental reason for the rule with respect to the free fine arts does not exist in the case of the commercial products covered by paragraph 1547 (a).

(7) No doubt exists as to the witnesses Harridane and Daws being professional sculptors, and no difficulty is experienced in agreeing with the trial court's conclusion that the original figurines modeled by them for Doulton & Co., Ltd. were sculptures within the common, ordinary meaning of that term.

(8) Not everything modeled by a sculptor becomes a sculpture, or a work of art, within the common meaning of the term, which, in the absence of defining phraseology, is also the statutory meaning.

(9) The fact that suggestions as to subject matter to be represented by the figurines were made at times to the sculptors by the art director of Doulton & Co., Ltd., does not detract from the originality of the sculptors work.

* *

(10) The Congress did not create the new law embraced in paragraph 376 (which did "not expressly define 'sculptures,' and does not limit the number of copies, replicas, or reproductions thereof *") of the 1913 act idly, nor has it been retained idly. The amendment as to the valuation adopted by the Congress which passed the 1930 act is believed to have a significance which aids in interpreting the paragraph.

(11) The Congress obviously intended that some forms of statuary and sculpture and copies, replicas, or reproductions of same should be classifiable under paragraph 1547 (a). If figurines, such as those here involved, are held not to be so classifiable, it would seem that the paragraph would be greatly mutilated, if not wholly emasculated.

(12) No identification of originals as distinguished from copies is made among the figurines here involved, nor in the protest. So, upon the record,

all should pay duty at the rate of 20 per centum ad valorem.

United States Court of Customs and Patent Appeals, June 5, 1951 Appeal from United States Customs Court, C. D. 1277

[Reversed and remanded.]

B. A. Levett (Meyer Ohlbaum of counsel) for appellant.

David N. Edelstein, Assistant Attorney General (Joseph F. Donohue, special attorney, of counsel), for the United States.

[Oral argument April 11, 1951, by Mr. Levett and Mr. Donohue]

Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Associate Judges

GARRETT, Chief Judge, delivered the opinion of the court:

This is an appeal from the judgment of the United States Customs Court, Third Division, overruling the protest of the importer whereby recovery is sought of a portion of the duties assessed and collected at the port of New York City on certain (1) earthen and (2) china, or porcelain, figures, often called figurines or statuettes, imported from England. Certain types of clay form the basic ingredients of the articles which have no utility, having been designed for purely ornamental purposes. They are hereinafter more particularly described with respect to their creation, composition and what they represent. Since they fall squarely within the dictionary definitions of figurine we shall usually so designate them. All are embraced within the term ceramics.

The earthen figurines of the first type were classified under paragraph 211 of the Tariff Act of 1930, with duty assessment at 10 cents per dozen pieces and 50 per centum ad valorem, and those of the second type, composed of china or porcelain, under paragraph 212 of that act as modified by the reciprocal trade agreement with the United Kingdom, T. D. 49753, 74 Treas. Dec. 253, 263, with duty assessment at 45 per centum ad valorem.

The pertinent provisions of the respective paragraphs read:

* *

Par. 211. Earthenware and crockery ware composed of a nonvitrified absorbent body, including white granite and semiporcelain earthenware, and cream-colored ware, terra cotta, and stoneware, including * statues, statuettes, * ** * and all other articles composed wholly or in chief value of such ware; painted, colored, tinted, stained, enameled, gilded, printed, ornamented, or decorated in any manner, and manufactures in chief value of such ware, not specially provided for, 10 cents per dozen pieces and 50 per centum ad valorem.

** * *

Par. 212. [as modified by the trade agreement with the United Kingdom, T. D. 49753.] China, porcelain, and other vitrified wares, including chemical porcelain ware, composed of a vitrified nonabsorbent body which when broken shows a vitrified or vitreous, or semivitrified or semivitreous fracture, and all bisque and parian wares, including statues, statuettes, and all other articles composed wholly or in chief value of such ware (except sanitary ware and parts and fittings therefor); any of the foregoing containing 25 per centum or more of calcined bone:

* * *

* *

*

*

Painted, colored, tinted, stained, enameled, gilded, printed, or ornamented or decorated in any manner, and manufactures in chief value of such ware, not specially provided for:

The claim on behalf of appellant is that both classes of figurines are subject to duty assessment at only 20 per dentum ad valorem, because classifiable under paragraph 1547 (a) of the 1930 Tariff Act,-specifically under that clause of the paragraph which reads:

Par. 1547. (a) Works of art, including * statuary, sculptures, or copies, replicas, or reproductions thereof, valued at not less than $2.50, * * not specially provided for, 20 per centum ad valorem.

At the outset we are confronted by a disagreement of counsel with respect to the scope of the issue before us. This, we think, can be better understood after the facts are recited.

Much evidence was introduced on behalf of both parties, including exhibits illustrative of the merchandise, the testimony of numerous witnesses and some documentary exhibits.

The brief on behalf of the Government quotes the factual digest made by the trial court in its findings of fact, stating that it is "complete and impartial." Counsel for appellee, while disagreeing with the court's finding of law, does not question its findings of fact, and we avail ourselves of what we regard as a most able statement by quoting it verbatim.

It is long but no longer than clarity requires. It reads:

Factual Digest by the Trial Court

At the trial 18 samples of the merchandise were received in evidence (plaintiff's exhibits 1 to 18). It was stipulated that such articles—

* * are true samples of, and respectively represent in all respects, all figures wherever so described or designated on the invoices accompanying the entries covered by the above numbered protest and may be received in evidence as such samples and marked respectively as plaintiff's exhibits 1 to 18.

It is further stipulated and agreed that such samples may be so received as representative as to character, material, process of manufacture, and identical in other respects, except as to size, value, design and subject matter, of all figures covered by the above numbered protest and described or designated on the invoices accompanying said protest as "figures,” irrespective of any particular name and number under which such figures may be designated on said invoices.

There were received in evidence the deposition of Leslie Harradine (plaintiff's exhibit 20), the deposition of Frederick Thomas Daws (plaintiff's exhibit 21), and the depositions of Cecil J. Noke and of the individuals who painted the figures before the court (plaintiff's exhibit 22).

Cecil J. Noke stated in his deposition that he is the art director of Doulton Co., Limited (hereinafter called Doulton), and has held that position for 12 years; that Doulton produces bone china and earthenware figures, tableware, vases, and decorative lines; that he is responsible for the production and designing of all patterns for such articles; that he is responsible for all new models, both figures and animals, for the coloring, and for all details attached thereto; that he was trained through schools of art which he attended while in the employ of Doulton; that he is familiar with all the processes by which the figures involved herein were produced at the factory; that he is responsible for the designing, making, and coloring of all figures produced by Doulton. He described the process by which the figures are made as follows: