Minneapolis, Minn.; Mobile, Ala.; New Orleans, La.; New York, N. Y.: Nashville, Tenn.; Omaha, Nebr.; Pittsburg, Pa.; Port Huron, Mich.; Portland, Oregon; Port Townsend, Wash.; Providence, R. I.; Rochester, N. Y.; San Diego, Cal.; Saulte St. Marie, Mich.; Seattle, Wash.: St. Joseph, Mo.; St. Louis, Mo.; St. Paul, Minn.; San Antonio, Tex.; Sioux City, Iowa; Springfield, Mass.; Sandusky, Ohio; San Francisco, Cal.; Tacoma, Wash.; Toledo, Ohio; and to such other places as may be hereafter designated by law as ports to which such merchandise may be transported, in the following manner, viz: In suitable cars or vessels owned or controlled by said company, commonly known as the Hoosac Tunnel Line, and running over the following-named lines of railroads and water routes, viz: Anchor Line; Atchison, Topeka and Santa Fe; Allegheny Valley; Atlantic and Pacific; Baltimore and Ohio; Chicago and Atlantic; Chicago and Grand Trunk; Chicago and Alton; Chicago, Santa Fe and California; Chicago, Burlington and Quincy; Chicago, Rock Island and Pacific; Chicago, Milwaukee, and St. Paul; Chicago and Northwestern; Chicago, St. Louis and Pittsburg; Chicago, Burlington and Northern ; Chicago, St. Paul and Kansas City; Cincinnati, Hamilton and Dayton; Cincinnati, Wabash and Michigan; Cincinnati, Jackson and Mackinaw; Cincinnati, New Orleans and Texas Pacific; Cincinnati, Indianapolis, St. Louis and Chicago; Cleveland, Columbus, Cincinnati and Indianapolis; Cincinnati Midland; Columbus, Hocking Valley and Toledo; Cairo and Vincennes; Cheshire Central Vermont; Califor nia Southern; Central Pacific; Clover Leaf (Lake Line); Delaware and Hudson Canal Company; Delaware, Lackawanna and Western; Evansville and Terre Haute (Eber Ward's Line); Fitchburg; Grand Trunk of Canada; Illinois Central; Indiana, Illinois and Iowa; Indianapolis, Decatur and Springfield; Lake Erie and Western; Louisville and Nashville; Louisville, New Albany and Chicago; Lake Superior Transit Company; Lackawanna Green Bay Line; Lackawanna Transportation Company; Lehigh Valley Transportation Company; Minneapolis, St. Paul and Sault St. Marie; Minneapolis, St. Paul and Buffalo Steamship Company; Missouri Pacific; New York, Lake Erie and Western; New York, Chicago and St. Louis; New York Central and Hudson River Railroad; Northern Pacific: Nashville, Chattanooga and St. Louis; Ohio and Mississippi; Oregon Railway and Navigation Company; Ohio, Indiana and Western; Pittsburg, Cincinnati and St. Louis; Pittsburg and Western; Pittsburg and Lake Erie; Southern Pacific; Northern Steamship Company; St. Louis and San Francisco; Sarnia and Duluth Line; Toledo, Peoria and Western; Terre Haute and In dianapolis; Toledo, St. Louis and Kansas City; Toledo, Ann Arbor and Northern Michigan; Union Pacific; Union Despatch; Wabash; Wabash Western; Western New York and Pennsylvania; Wisconsin Central; Western and Atlantic; Wabash Lake Line; Rotterdam Canal Line; Great Northern Railroad, and such other railroads and water routes as may be hereafter authorized and designated by the Secretary of the Treasury; provided that in all cases where other railroads or water routes are so authorized and designated, the written consent thereto of the sureties on the bond shall first be filed with said Secretary. In all instances where other cars or vessels than those owned by said company are used, they shall be distinctly marked "Fitchburg Railroad Company." You will note the fact and date of the rebonding of the company upon the copies of the bonds approved, as above stated, April 5, 1892, now in your possession, and retain the same without cancellation to meet any liability which may have accrued thereunder. Respectfully, yours, COLLECTOR OF CUSTOMS, Boston, Mass. (13632.) O. L. SPAULDING, Assistant Secretary. Theatrical effects, Agnes Huntington Case. TREASURY DEPARTMENT, January 7, 1893. SIR: The Department is in receipt of a letter dated the 27th ultimo, from the United States attorney for the southern district of New York, in which he reports that on the 20th ultimo the United States circuit court of appeals at New York, without rendering an opinion, affirmed the judgment of the United States circuit court and the decision of the Board of United States General Appraisers in the matter of an importation of theatrical costumes, etc., by Agnes Huntington, per City of Paris, October 7, 1891 (No. 629). The facts in the case appear to be that, upon importation of said merchandise, which consisted of theatrical costumes owned by Miss Huntington for the use of an operatic company of which she was manager, the collector assessed the duty thereon applicable to the individual articles, under the act of October 1, 1890; that the importer claimed that the goods were free of duty under the provisions of paragraph 686 of the said act, which are as follows: "Professional books, implements, instruments, and tools of trade, occupation, or employment, in the actual possession at the time of persons arriving in the United States; but this exemption shall not be construed to include machinery or other articles imported for use in any manufacturing establishment, or for any other person or persons, or for sale," and brought the case before the Board of General Appraisers; that the latter, on the 31st of October, 1891 (G. A. 988, Synopsis 12126), reversed the decision of the collector, and sustained the protest, whereupon the Department ap. pealed the case to the United States circuit court at New York, and on the 19th of February last said court sustained the decision of the board. On the trial in the lower court the Government contended that the addition of the words, "for any other person or persons," in the act of 1890, to the corresponding provisions in the act of 1883, was intended to exclude from exemption of duty such articles as were not to be used personally by the importer, though they might be intended to be used by the importer's servants or employés, and that any other construction of these words would leave them practically of no effect; but the court found that the words were intended only to cover cases of voluntary transfers by the importer after the importation, and that the use of the implements of a profession by the servants of the importer, she retaining the title to and controlling them, was an importation for herself so far as to bring such implements within the exemption of said paragraph 686. Upon the rendition of this decision and under date of March 7, 1892, the United States Attorney-General directed an appeal to the circuit court of appeals, with the result aforesaid. You are hereby authorized to take measures looking to a refund of the duties exacted, and you will apply this decision to all similar cases pending at your port where proceedings have been regularly taken. under the provisions of sections 14 and 15 of the act of June 10, 1890. O. L. SPAULDING, Respectfully, yours, COLLECTOR OF CUSTOMS, New York. Assistant Secretary. [The following is the decision of the Board above referred to.] (G. A. 988.) Free entry of theatrical effects as implements of occupation. Before the U. S. General Appraisers at New York, October 31, 1891. In the matter of the protests, 15974a and 159741⁄2a, of Miss Agnes Huntington, against the decision of the collector of customs at New York as to the rate and amount of duties chargeable on certain theatrical effects, imported per City of Paris, October 7, 1891. Opinion by WILKINSON, General Appraiser. The goods are seventeen packages of theatrical effects, consisting of costumes, tights, hats, boots and shoes, gloves, hair wigs, armor, and swords. They were assessed for duty under the provisions of the tariff applicable to the individual articles, and are claimed by the appellant, Miss Agnes Huntington, to be entitled to free admission either as personal effects (presumably under paragraph 752), or as the implements of her profession, under paragraph 686. The claim for free admission as personal effects is excluded by the limitation in paragraph 752, which provides that "this exemption shall not be held to include articles not actually in use and necessary and appropriate for the use of such persons for the purposes of their journey and present comfort and convenience." The claim to be considered is that under paragraph 686. The facts in the case are as follows: Miss Agnes Huntington having secured the rights to an opera called "Captain Therese," and having arranged to produce it in the United States, bought certain theatrical properties that had been used in the presentation of that play in London. Having repaired, cleaned, and renovated the costumes and other effects purchased, she brought them with her from England to the United States by the steamship City of Paris. On landing at the port of New York, Miss Huntington made oath on entry that the articles were her implements and tools of trade, and that they were not imported for any other person, nor intended for sale. The goods were then delivered to her free of duty, but subsequently the invoice was reliquidated, and the duties complained of exacted. We further find that Miss Huntington was, and is, a prima donna, theatrical manager, and proprietor. Paragraph 686, N. T., provides free admission for "implements, instruments, and tools of trade, occupation, or employment in the actual possession at the time of persons arriving in the United States," with the only limitations that "this exemption shall not be construed to include machinery or other articles imported for use in any manufacturing establishment, or for any other person or persons, or for sale." "Occupation" is a description broad enough to include any profession. The chief question for consideration is: Are the goods covered by the protest the implements, instruments, or tools of a theatrical manager or proprietor? Webster defines "tool" as (1) an instrument used in the manual arts, (2) "any instrument of use or service;" and "implement" as "whatever may supply a want, especially an instrument or utensil, as supplying a requisite to an end." The definition given to the word "instrument" is "that by which work is performed or anything is effected; a tool, a utensil, an implement, a contrivance, implement, or structure by which musical sounds are produced." These terms are comprehensive, and the board can not put upon them a limitation narrower than their interpretation by the administrative, judicial, and legislative departments of the Government. If an actor should bring to the United States a sword intended and appropriate for a part he expects to play, it can hardly be disputed that the article would be entitled to free admission. If a stage sword is a tool of trade, it is not apparent why the costume of which it is a part should not be considered a tool or instrument of the profession. But it may be contended that the articles in controversy are not to be worn by the actress who is the appellant, but that they are intended for the use of other members of the company. This contention would seem to be answered by the opinion of the Attorney-General which is promulgated in Synopsis 8021 with the expressed concurrence of the De partment. In this opinion it is held that the provision of law applies to implements, instruments, and tools intended for the actual personal use of the immigrant or those following one and the same trade or occupation under his personal supervision or employment. In Synopsis 7321 (1886), in announcing the judgment in favor of the plaintiff in the case of Mapleson against W. H. Robertson, United States circuit court southern district New York (N. S. 9564), Assistant Secretary Fairchild said: The question involved was whether certain theatrical costumes and other theatrical properties imported by the plaintiff were liable to duty as assessed by the defendant at the time of importation, or entitled to free entry as tools, implements, or instruments of profession, occupation, or trade, as claimed by the plaintiff. "The proof adduced on the trial showed that the plaintiff was an operatic manager, and that the articles in question were costumes of actors and actresses, and various other theatrical properties owned by him, and which he generally carried from place to place for the purpose of use in producing operas. The court left the question to the jury to determine, who returned a verdict for the plaintiff, which verdict seems to be in accordance with the Department's previous rulings in somewhat similar cases." The Solicitor of the Treasury recommended an acquiescence in the verdict, and the Attorney-General stated that no appeal would be taken. It is presumable that Congress was aware of the decision in the Mapleson case, and of the practice of the Department, which, according to Synopsis 7321, was in harmony with that decision. It is also a strong presumption that if Congress differed from the construction placed on the provision for tools of trade in the act of 1883, the legislative intent would have been better defined in the act of 1890. It may be regarded as a well-established maxim that "the reenactment of a statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the statute as thus construed." (Sunderland Stat'y Cons., sec. 333.) The only changes of the provision in question in the act of 1890 are the insertion of the phrase "in the actual possession at the time" before the words "of persons arriving in the United States" and the limitation that the exemption shall not include articles imported "for any other person or persons." The goods were in the actual possession of Miss Huntington at the time of her arrival in the United States, and were not imported for, or for the use of, any other person or persons, but solely for her own ownership, use, and benefit in the production of the opera called "Captain Therese." We can not see that the new tariff gives the question in controversy a status different from that presented in the Mapleson case; and, in accordance with what seems to have been the practice of the Department, and with the judicial decision in that case, the protest is hereby sustained. The invoice and entry are returned herewith. General Appraiser George H. Sharpe concurs for the following reasons: The facts are carefully stated in the opinion of General Appraiser Wilkinson. |